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Needham doctor will face lesser charges in patients’ deaths

Prosecutors acknowledged they now face tougher standards

Dr. Joseph P. Zolot and his nurse practitioner will still face charges of conspiracy and drug dealing.

John Tlumacki/Globe Staff/File

Dr. Joseph P. Zolot and his nurse practitioner will still face charges of conspiracy and drug dealing.

Federal prosecutors in Boston have been forced to scale back criminal charges against a popular Needham-based doctor they accuse in the deaths of six of his patients by recklessly prescribing painkiller medications.

Prosecutors had alleged that Dr. Joseph P. Zolot, 64, a specialist in nonsurgical orthopedics, and his nurse practitioner Lisa M. Pliner, 54, caused the deaths of at least six people, and they cited other patient deaths.

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The charges are being lessened after prosecutors acknowledged that they now face tougher standards under a recent US Supreme Court decision. Those standards, set in a little-noticed ruling in January, require prosecutors to prove that a drug dealer was responsible for a death because the drug he or she provided was the exact and only cause of the death.

The government said in a recent court filing that it will still charge Zolot and Pliner with conspiracy and drug dealing, but that they will no longer seek “cause of death” charges, which boosted the potential sentence to a minimum of 20 years. The drug dealing counts carry punishments of up to 20 years.

The decision to scale back the case disappointed family members of the dead patients, who said Zolot should never have been prescribing opiate medications, including methadone, to them.

“How could a medical professional turn a blind eye to it?” said Denere P. Poulack, whose older brother Scot Poulack was originally listed as one of Zolot’s alleged victims.

Poulack was 39 when he died in September 2006, a month after he was prescribed methadone for the first time.

“If he wasn’t prescribed those drugs, he wouldn’t have done them, and he might possibly be alive,” Denere Poulack said, adding that Zolot, “did have an oath to do no harm. He does have a responsibility here.”

Legal analysts say the new standards make it more difficult to prosecute people in fatal drug overdoses, including doctors and street-level heroin dealers. In addition, the analysts said that prosecutors in recent years have overreached in charging people with causing a death, even when an overdose fatality could have been based on several outside factors.

“It adds another obstacle, another challenge to bringing those cases,” said Gerard T. Leone Jr., a former state and federal prosecutor who is now a defense lawyer for Nixon Peabody.

He added that “these have always been difficult cases, but this decision clarified the law.”

The federal case in Boston was precedent-setting in that it was one of the first to charge a doctor with causing the deaths of patients by running a reckless drug dealing operation, under the pretext of a medical practice.

Prosecutors would not comment Thursday on the decision, which was announced in a two-page court filing. But the decision came after Zolot’s lawyer, Howard Cooper, successfully had the trial postponed last year, after noting the Supreme Court would be hearing a case with a question central to Zolot’s case. Prosecutors announced their decision after the ruling was issued.

“Following the Supreme Court’s decision . . . the government really had no choice but to drop part of the case alleging that anything Dr. Zolot or Nurse Pliner had done resulted in anyone dying, because there was no proof of that,” said Cooper, of the law firm Todd & Weld LLP. “Dr. Zolot looks forward to the upcoming trial at which he expects to be fully acquitted.”

Cooper argued that the standards the Supreme Court set were the same that Zolot would have faced in a medical malpractice suit, and he said there was no reason to lower those standards in a criminal case.

“It would be illogical for there to be a lower burden of proof in a criminal case, and the US Supreme Court has made clear that there is not,” Cooper said.

The Supreme Court case, originating from Iowa and named after the defendant Marcus Andrew Burrage, involved allegations that Burrage sold heroin to a man who ultimately died after binging for two days on a mix of drugs. The trial judge had refused to dismiss the case after experts had testified that the heroin contributed to the death.

The Supreme Court, however, ruled that prosecutors were required under the law to prove that the heroin Burrage supplied was the exact and only cause of death, a higher standard.

“It can’t be a contributing cause, it has to be the only cause,” said Allison Burroughs, a lawyer with Nutter McClennen & Fish LLP.

Robert Sheketoff, a Boston lawyer who has handled similar cases, said the Burrage decision forced prosecutors to pull back from seeking the “cause of death” addition to the charges.

“It changed the standard, and it knocks them out of the box,” he said. “To me, it means they didn’t have a very strong case for causation. . . . You have to have proof the person caused the death.”

Angela Campbell, the Iowa-based attorney who represented Burrage, said what was clear from the case and others she has researched since is that prosecutors have long overreached in essentially charging people with a crime similar to murder, even if the drugs they supplied were not the only cause of death.

“That standard should be very high, not just in the doctor’s scenario, but in any scenario,” she said. “If you’re going to be put people in prison for 20 years or higher, you should have a much higher standard.”

Federal prosecutors have indicated in court records that they will still seek to introduce evidence of the deaths of Zolot’s patients in arguments that his reckless prescribing of medicine constituted illegal drug dealing.

If Zolot is convicted, prosecutors could then use that evidence to argue for tougher prison terms for each charge, and to have those terms run consecutive for an overall lengthy prison sentence.

Cooper has opposed the introduction of the deaths in trial.

Milton J. Valencia can be reached at mvalencia@ globe.com. Follow him on Twitter @miltonvalencia.
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