People v. Xun Wang

505 Mich. 239

952 N.W.2d 334

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.XUN WANG, Defendant-Appellant.

No. 158013

Supreme Court of Michigan.

Argued on application for leave to appeal November 7, 2019

Decided May 13, 2020

Zahra, J. Defendant was convicted after a bench trial of two counts of Medicaid fraud under MCL 400.607 and one count of unauthorized practice of a health profession under MCL 333.16294. The Court of Appeals affirmed the convictions but vacated the imposition of fines and remanded for resentencing to allow the trial court to articulate why the amount assessed in fines was proportionate.¹ Defendant now appeals in this Court, challenging the sufficiency of the evidence. We affirm defendant's conviction of unauthorized practice of a health profession because defendant engaged in the nondelegable task of prescribing controlled substances. We reverse defendant's convictions of Medicaid fraud because the evidence presented at trial and relied upon by the trial court did not support the conclusion that defendant knew or should have known that the nature of her conduct was substantially certain to cause the payment of a Medicaid benefit.² Lastly, we remand this matter to the trial court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Defendant is from China, where she previously earned a medical degree and completed a two-year residency. She moved to the United States in 2001, after which she earned a Ph.D. in basic medical science from Purdue University's veterinary school and began work as a medical researcher at the University of Michigan's medical school. In 2013, she began a two-month student rotation through the AmeriClerkships program working in the Livernois Family Clinic, which was owned by Dr. Murtaza Hussain. After completing her student rotation, defendant volunteered at the clinic before eventually becoming a part-time employee. Notwithstanding her education in the United States and abroad, defendant has never been licensed to practice in a health profession in this country.

The Michigan Department of the Attorney General's Health Care Fraud Division discovered that a high volume of narcotics prescriptions were being written at the clinic. In 2014, the department conducted an investigation of the clinic, during which Drew Macon and Lorrie Bates, special agents with the department, separately went to the clinic while posing as patients with Medicaid benefits.

Macon went to the clinic in August 2014, posing as a new patient. He presented a Medicaid insurance card during the check-in process. When defendant called Macon into a patient room, she weighed him, took his blood pressure, and obtained information regarding the reason for his visit and his medical history. Macon informed defendant that he had attention deficit disorder and asthma, and Macon requested prescriptions for vitamin D, an inhaler, Klonopin,³ and Adderall.⁴ Defendant left the room for approximately eight minutes. When she returned, she stated that Macon would need to forward his out-of-state medical records to the office to receive Adderall and gave Macon a release form and instructions. Defendant then gave Macon prescriptions for vitamin D, Klonopin, and the inhaler. The signature on the prescriptions was Hussain's.

In December 2014, Bates went to the clinic, also posing as a new patient. A medical technician accompanied Bates into an exam room and noted Bates's complaints of headaches and insomnia. The medical technician took Bates's blood pressure, medical history, and made some written notes on a piece of paper attached to a clipboard. Taking the clipboard, the medical technician left after informing Bates that the doctor would be in shortly. Defendant, wearing a stethoscope and a long, white lab coat, was the next person to enter the exam room. Defendant stated that she was Hussain's assistant and asked about the reason for Bates's visit. When Bates responded that she was having difficulty sleeping and combating headaches, defendant obtained further information about these complaints. Defendant also took written notes of Bates's medical history. Defendant then asked Bates if she had taken medication for the headaches and stated that medication could be provided to help. Bates declined a Pap smear, and at that point, defendant left the room for approximately six minutes. When defendant returned, she inquired as to Bates's pharmacy preference. Bates responded, and defendant typed something into her cellular phone before informing Bates that a prescription had been sent to a pharmacy. A physical examination was then performed, in which defendant shined a flashlight into Bates's eyes and had Bates alternate standing and sitting down. When Bates asked whether defendant was a doctor, defendant responded, "No, I'm just his assistant. He's not here today." At this point, defendant gave some details about the headache medication that had just been prescribed. Defendant asked if there was "anything else," and Bates called attention to her insomnia, to which defendant replied with recommendations of taking melatonin, drinking milk before going to sleep, and spending time relaxing. Defendant added that if these techniques were unsuccessful, Bates could use a low dose of a "controlled medication." Defendant produced a prescription pad, which had been previously signed by Hussain, and wrote a prescription for Ambien.⁵ Before the interaction concluded, Bates asked how long defendant had been a doctor. Defendant responded that she had been a doctor for "one year." Lastly, defendant offered Bates advice regarding "sleep hygiene."

Both agents’ patient progress notes were entered into the clinic's computer system and were electronically signed by Hussain. The notes indicated that both defendant and Hussain had seen the agents. The Medicaid processing system reflected that claims were submitted for both agents’ treatment and were paid to Hussain for a total of $260.

A search warrant was executed at the clinic. There, agents found prescription pads that were presigned by Hussain. Defendant was not present during the search, and so Bates went to defendant's home. There, defendant agreed to speak with agents. She stated that she was not a doctor and that she only worked under Hussain's guidance. She added that if she saw a patient when Hussain was not in the office, she would contact him via phone so that he could make final decisions.

Defendant was charged with two counts of Medicaid fraud under MCL 400.607 and one count of unauthorized practice of a health profession under MCL 333.16294. Defendant waived her right to a trial by jury, and a bench trial followed. The parties stipulated that defendant had no license to practice in a health profession in 2014 or 2015 and that Hussain was not present at the clinic when Macon and Bates visited. Defendant was found guilty of all charges. In January 2017, the trial court sentenced her to concurrent terms of 365 days in jail for each conviction, which was suspended upon the successful completion of five years’ probation and the payment of $106,454 in fines and costs.

In her appeal of right, defendant challenged the sufficiency of the evidence supporting her convictions as well as the proportionality of her fines. In an unpublished per curiam opinion, the Court of Appeals affirmed her convictions but vacated the trial court's imposition of fines and remanded for resentencing to allow the trial court to articulate why the amount assessed in fines was proportionate.⁶ Defendant now seeks leave to appeal in this Court, and on March 27, 2019, this Court entered an order directing oral argument on the application and requiring the parties to address:

(1) whether the statutory exception in MCL 333.16294 is an element of the offense for which the prosecutor has the burden of proof, see People v. Rios , 386 Mich. 172 (1971) ; but see People v. Langlois , 325 Mich. App. 236 (2018) ;^{[7 ]} (2) if the statutory exception is an element of the offense, whether the Court of Appeals erred in holding that the evidence was sufficient to sustain the defendant's conviction under MCL 333.16294 and specifically, whether the Court of Appeals erred in concluding that the defendant's actions were consistent with the practice of medicine and therefore could not be delegated to her under MCL 333.16215 ; and (3) if the statutory exception is not an element of the offense, whether defense counsel was ineffective for failing to raise a delegation defense and bring the relevant statutory provisions to the trial court's attention. In addition, the appellant shall address whether the evidence was sufficient to sustain the defendant's convictions under MCL 400.607(1), and specifically whether the evidence was sufficient to show that the defendant was in possession of facts under which she was aware or should have been aware that her conduct was substantially certain to cause the payment of a Medicaid benefit. See MCL 400.602(f).^{[8 ]}

II. ANALYSIS

A. STANDARD OF REVIEW

Defendant opted for a bench trial, waiving her right to a trial by jury. Bench trials stand in sharp contrast to jury trials. A jury is required to consider all the evidence and to render a unanimous verdict, without the need for explanation.⁹ In a bench trial, however, the trial court is obligated to "find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment. The court must state its findings and conclusions on the record or in a written opinion made a part of the record."¹⁰ Because of this, reviewing courts are provided greater insight into the specific evidence found by the trial court to support verdicts in bench trials.

Defendant contends that the evidence presented at trial was insufficient to sustain her convictions.

Challenges to the sufficiency of the evidence are reviewed de novo.¹¹ "In evaluating defendant's claim regarding the sufficiency of the evidence, this...