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SALT LAKE CITY — Caring doctor or drug dealer?
A nine-woman, three-man jury is mulling which description fits Dewey C. MacKay, a Brigham City doctor charged with 85 counts of illegally prescribing painkillers, including two counts relating to a death. The case hinges on whether he dispensed drugs at his small pain management clinic for legitimate medical purposes.
The jury ended deliberations Wednesday night after nearly five hours. They will resume Thursday at 8 a.m.
MacKay's lawyer and federal prosecutors made intense closing arguments in U.S. District Court on Wednesday, ending four weeks of testimony.
Defense attorney Peter Stirba called the government's case a "big con" devoid of evidence to prove the indictment beyond a reasonable doubt. There's no disputing, he said, that each patient identified in the charges suffered chronic pain.
"If he's prescribing medications for pain, he's not guilty," he said. "That's about as simplistic as I can make this case."
Assistant U.S. attorney Michael Kennedy said MacKay "blindly" wrote prescriptions to maintain the income he had made as an orthopedic surgeon. Personal health problems prompted MacKay to change his longtime surgical practice to pain management.
Sometimes a drug dealer can be a pillar of the community. Sometimes a drug dealer operates out of an office. Sometimes a drug dealer wears a white coat.
–Michael Kennedy, Assistant U.S. attorney
"Writing prescriptions was an easy, low-impact and lucrative practice," he said.
MacKay, he said, stopped acting as a doctor and become a "seller of wares, a seller of prescriptions."
"Sometimes a drug dealer can be a pillar of the community. Sometimes a drug dealer operates out of an office. Sometimes a drug dealer wears a white coat," Kennedy said.
MacKay, 63, who has worked in Brigham City for 30 years, served on hospital boards, worked with Box Elder County Search and Rescue and served as team doctor for high school athletic teams.
Drug dealers don't do that, Stirba said
Drug dealers don't drop customers like MacKay dropped patients he learned were abusing painkillers, he said. They don't order X-rays and MRIs and track patients' drug use in state databases. They don't keep medical charts and billing records.
The evidence is overwhelming that Dr. MacKay was acting in all respects like a physician.
–Peter Stirba, defense attorney
"I don't really think a drug dealer would say, 'Oh, boy. It's tax time. I better get my records together for the IRS,'" he said. "The evidence is overwhelming that Dr. MacKay was acting in all respects like a physician."
Kennedy said MacKay acted unprofessionally, including a tryst with a female patient who allowed him to give her an erotic nude massage at an Ogden motel in exchange for cash and a prescription. MacKay denied giving the massage and testified earlier this week that he and his wife went to the Ogden LDS Temple that morning and checked into the motel afterward so she could rest.
Prosecutors say MacKacy sometimes saw nearly 100 patients a day, some from as far away as Utah County. They say he ignored or didn't bother to check out signs of doctor shopping or drug abuse among his patients.
MacKay wrote 20,612 prescriptions for hydrocodone products from January 2005 to October 2009, totaling more than 1.9 million pills, prosecutors say. He had the highest volume of prescriptions for hydrocodone in the state five years in a row.
MacKay's primary question to regular patients was, "Do you need a refill?" Kennedy said. "That sounds like something you would hear from a waitress in a coffee shop not a doctor issuing narcotics."
MacKay wrote 20,612 prescriptions for hydrocodone products from January 2005 to October 2009, totaling more than 1.9 million pills, prosecutors say.
Prosecutors contend prescriptions for painkillers the doctor wrote for longtime patient David Wirick on May 3, 2006, led to his death after a drug binge three days later. MacKay had previously agreed with Wirick's family doctor to stop seeing Wirick.
"I will no longer see him," MacKay noted on the 55-year-old Wirick's chart after that visit.
"Well, he never saw him again. Neither did his wife and son," Kennedy said.
Wirick's wife Susan sobbed as the prosecutor recounted that event.
Stirba argued that MacKay was in no way responsible for Wirick's death. Toxicology reports, he said, showed the man had therapeutic but not toxic level of the hydrocodone and oxycodone in his bloodstream.
Wirick came to MacKay because he was suffering to the point of crying and his family doctor was out of town.
"What other purpose did he prescribe medications for if it wasn't for chronic pain?" Stirba said. "It absolutely was for chronic pain."