By Tyler Murphy
ALBANY — Instead of jail, LuAnn Burgess, the driver who crashed into a Voorheesville church and killed three people standing outside, was sentenced Friday to spend 600 hours warning community groups and speaking to lawmakers about the hazards of driving under the influence of prescription medication.
In a deal with prosecutors, Burgess pleaded guilty in November to three negligent homicide charges, admitting she was responsible for the deaths of the three victims.
Rosemarie Hume, 79; Carol Lansing, 66; and Frances Pallozzi, 81, were instantly killed when they were struck by Burgess’s Toyota Highlander at about 8:45 a.m. on Aug. 10, 2011, while waiting for friends at St. Matthew’s Church.
The Albany Sheriff’s office said an onboard computer in Burgess’ vehicle showed she had not braked during the accident. Responders at the scene reported Burgess was unaware she hit three people until police informed her at the hospital, where she was treated for minor injuries.
Burgess’s sentence also suspended her driving privileges for the rest of her life and placed her on five years’ probation.
The unprecedented case exposed gray areas between medicine and law.
When the accident occurred, Burgess was taking six prescribed medications related to her Parkinson’s disease. At the heart of the case were discussions about how much of a role that cocktail of prescribed medications played in the accident.
Prosecutors, defense attorneys, and even the judge noted the case was unprecedented and exposed a wider concern about how drivers taking prescription medications should be handled by the justice system.
Albany County District Attorney David Soares said he hopes the case will spur more dialogue in the medical community with patients and motivate legislators to review practices related to prescription medicine.
“When a jury hears that the person had, in fact, been consuming the medication but doing so under a doctor’s prescription, a legal prescription, you’re going to have problems securing a conviction. Which is why we arrived at the conclusion we arrived at today,” said Soares following Friday’s proceeding.
Speaking to reporters, he added, “We do not want to be in a position where we’re saying that there’s no fault here to be laid at the feet of the person who actually ingests the prescribed medication.”
“The focus here is entirely on Ms. Burgess and what she did and what she could have done to avoid what in fact took place. She had a lot of responsibility for ingesting all of those products, but what we’re also saying is the physicians have that responsibility to also ensure they are having this dialogue,” he said.
Assistant professor of neurology at the State University of New York at Buffalo, Dr. Thomas Guttuso, a movement disorder specialist who cares for Parkinson’s patients, said the disease was sometimes difficult to assess because it’s a constantly changing degenerative illness affecting the mind and nervous system.
“Whenever you prescribe any medication, you should go over what the effect of the prescribed medication could be,” he said.
Parkinson’s disease is not terminal but is an incurable illness that destroys brain cells over an extended period of time, leading to a loss of cognitive skills and lack of controlled movement.
“In the first five years, patients are practically normal,” said Guttuso. During this phase, a patient could get limited dopamine therapy to slow the illness but, within 10 years of diagnosis, generally, about 50 percent of those with the disease have developed dementia, and, within 20 years, 80 percent have, he said.
The main symptoms of Parkinson’s are tremors, stiffness, and slowness.
Guttuso said the kinds of medication and the level of potency could change as a patient’s natural tolerances toward them grow.
As the disease progresses, it can be difficult to determine when it has reached the point where a person can no longer drive and it’s different for everyone, he said.
As the condition worsens and a person’s cognitive functions are affected, it can be hard to even tell if certain symptoms are a prescription side effect or the disease taking its course, he said.
“There are so many factors that could contribute to someone’s impairment when driving,” he said.
Some common drugs associated with Parkinson’s disease are known to disrupt concentration and cause severe drowsiness; some patients can’t help but to fall asleep at times, said Guttuso.
“This is a condition that is difficult — as with people with any kind of neurodegenerative disease, in telling when they should or should not be driving,” said Guttuso.
on jail time
On Friday, the Albany County Court listened to several emotional statements from the victims’ families, where some asked that Burgess not to be sent to jail, while others requested incarceration.
“As you’ve heard, there are varying opinions, even amongst some members of the same family, on what that justice should look like,” Assistant District Attorney Mary Tanner-Richter told the court.
She asked Judge Stephen Herrick to send a message to the public about the risks of driving on prescribed medications by sentencing Burgess to the maximum penalty allowed in the plea agreement, six months in jail.
“The bottom line is this: On August 10, Ms. Burgess got behind the wheel of her SUV while under the influence of a cocktail of medications that clearly impaired her ability to drive,” said Tanner-Richter.
She added that it doesn’t matter if the medication were “prescribed by one doctor or 10, she [Burgess] is the one ultimately responsible for determining if she can safely drive or not, and she is the person who made the wrong choice that day.”
Before passing his sentence, Herrick noted that, just weeks before the accident, Burgess’s doctor of 15 years and other medical professionals, who were the ones to prescribe the medication, had helped her obtain a handicap parking permit — implying she was allowed to drive. The judge also said Burgess had never suffered a negative reaction to her medication before the day of the accident and it was common for her to drive while taking the medicines.
“These medications were prescribed by her physicians,” said Herrick. “She had the same primary physician for over 15 years; she knew what she was prescribed; he prescribed most of them. He knew the defendant’s physical and mental circumstances. She complied with his medical orders and had done so for a very substantial period of time without incident, and, although several of the prescription bottles contain warnings, no one, neither her primary physician or any other physician, or the department of motor vehicles, had ever told her, or even advised her, not to drive.”
Though he accepted the plea and said Burgess was responsible for her conduct, some of the judge’s remarks focused on whether the convicted crime met its legal definition.
Herrick read the charge of negligent homicide in court, explaining the requirement for criminal negligence, in part, meant it was apparent to the public’s common sense of right and wrong. He questioned how such a legal requirement had been met since Burgess’s inability to drive had not even been noticed by trained doctors prior to the accident.
“How then did the defendant’s medical providers not perceive this clearly apparent situation and risk?” Herrick rhetorically asked.
Agreeing with his fellow doctor and professor, Guttuso, Dr. David Lichter said assessing such risks from a medical standpoint is challenging. Lichter is a clinical professor of neurology at SUNY Buffalo and also works with patients at the Brain and Spine Center in Williamsville and at Buffalo Veterans Affairs Medical.
Lichter said attempting to create legislation to address situations containing so many variables regarding patients’ health and the drugs they take, is nearly impossible.
“When a drug comes to market, it has been tested with thousands of patients, but even then there are going to be people that have a different reaction than the ones seen in testing. That’s why you get some pulled from the market,” he said. “I think it would be impossible to mandate patients all across the board.”
Though there are some generalities about the disease, Lichter said, individual patients with Parkinson’s disease have a large and unpredictable range of symptoms, depending on age, gender, and other factors.
“They can progress quite differently. It’s not the same disease in any person by any means,” he said. “Even if you prescribed the same drug to two patients with the same disease, the same age, and gender, you could have two completely different reactions,” he said.
Lichter examined the six medications the grand jury cited in Burgess’s indictment. He said one treated acid reflux; another was for the thyroid; two were minor tranquilizers; and another was a mild anti-depressant.
One of the medications is in the same class as Valium, which could potentially induce sleep or delay reaction time, he said.
Companies researching pharmaceuticals of the future, Lichter said, are heading towards tailoring medicine to account for how a person may react to it based on his or her genes. Until then, though, there is no way to tell how a patient might react to a new drug, other than careful observation by physicians and those taking them.
After Friday’s proceedings Soares said the pharmaceutical industry was developing drugs faster than law enforcement could keep up with them, and Lichter shared a similar experience, saying patients of neurological diseases, especially Parkinson’s, are keen to track the most recent medical developments since they could have a serious impact on their lives.
He said it was not uncommon for patients to ask questions about new drugs. He recognized the challenges facing the legal community in trying to assess the fast-developing drug industry and how those drugs also interacted with each other.
“It’s just the nature of the industry, a reality that, to a certain extent, we have to deal with,” he said.
Drug companies’ duty
In sentencing Burgess on Friday, Herrick said the drug companies wield a great deal of influence and should consider some level of reform in how they market medication.
“We are an aging population of baby boomers, which I’m one, reaching senior status in growing numbers. We are also a population driven and manipulated by the pharmaceutical industry; a problem imposed by the probation officer and Ms. Tanner-Richter is a growing problem and needs to be addressed, and needs to be addressed now,” said Herrick.
Citing Burgess’s pre-sentencing report, which Herrick said was one of the most favorable he had seen for a defendant, the judge quoted what the probation office had written.
“How many more people are getting behind the wheel every day while under the influence of prescription medications that might also prove fatal by reducing response time or causing dizziness and drowsiness?” the judge read aloud.
The judge also said he and other officials involved in the case were convinced Burgess was truly remorseful for the incident.
“The defendant’s remorse is real and intense. She suffers guilt and remorse. She will be, I believe as many of you are,” said Herrick, addressing the victims’ families, “in a nearly constant living hell for the rest of her life.”
Burgess made a statement in court but was hard to understand as she cried and was overcome with emotion after a few sentences.
She said the full name of each victim and addressed their families, saying, “I am so sorry that I have caused the pain and suffering that I have brought to you and your family.
“Words cannot express the horror and remorse I feel every day,” she said, visibly shaking, as her attorneys helped seat and comfort her.
“There is absolutely no doubt that, if LuAnne could turn the clock back to a moment before the tragedy,” said her lawyer, Larry Rosen, “she would unhesitatingly give her own life to do so. More remorse is not possible from the human heart.”
Rosen also said that at times incarceration is necessary to protect the community but asserted, “LuAnne Burgess will never again be a threat to any human being.”
Burgess’s 600 hours of community service will be with the Albany Stop DWI program, and Herrick recommended she spend the time speaking to groups about the risks associated with prescription drugs. He also suggested she could speak with legislators, possibly along with victims, in helping to prevent similar accidents in the future.
DA reaches out
Despite the judge declining the prosecutor’s request for jail time, Herrick complimented the district attorney’s office and Soares specifically on how the case was handled in the best interest of justice.
In his opening remarks at sentencing, Herrick quoted Soares by saying, “I agree with what Mr. Soares said at the onset: ‘It is most likely a no-win situation for everyone involved.’”
Speaking about the judge’s ruling and his remarks about the number of people taking prescription medications, Soares said, “And it’s a fine point.”
“It’s a well point to make in this instance because there are thousands — millions of people taking prescription medication every single day for one issue or another. And how many people are truly taking prescription medications believing they can go out and hurt some one. There needs to be more dialogue with patients and physicians before these products are administered,” Soares stressed.
Soares said his office is reaching out to the medical community, including doctors and pharmacists, to see what can be done.
“I can say 15,000 words to legislators but my words will not have the impact that either the defendant in this instance would have, as well as those who have suffered the most in this instance would have,” said Soares. “Larger warnings on those bottles would work. More conversation, making it a part of the dialogue in prescribing medication with patients — that doctors do, in fact, provide those warnings.”
Soares said a number of police agencies in Albany County have drug recognition experts who are specially trained to detect the physiological signs of certain drugs on a person’s body.
In New York State, blood is taken from drivers only if they are involved in a personal-injury or property accident. Soares said law enforcement needs to have more trained recognition experts, and noted that an expanding pool of those taking prescription medications will put even more pressure on police and prosecutors.
Dr. Guttuso said one of the largest problems in assessing a patient’s inability to drive is that most refused to accept it themselves.
“Patients saying, ‘I shouldn’t drive’ is a rarity. It’s usually heard from a family member,” he said. “You get family members in the office and they’re saying ‘They really shouldn’t be driving.”
Both Guttuso and Lichter recommended patients who are concerned about their ability to drive should bring family members to a check-up to help engage in a more informed conversation with doctors.
They also agreed the best way to determine if a patient could drive was to offer them a cognitive test, which would rate a number of responses such as spatial relations, short-term memory, and reaction time, among others. Guttuso proposed it might be possible to offer all patients such a test to ensure they were functioning well enough to drive. He said he offered such a test to patients in his office.
Guttuso said there are available medical professionals trained to give patients “a roadside test,” to see if they can drive a vehicle. He said some medical facilities have driving simulators to determine if a person can operate a motor vehicle.
Lichter also advised that the state and federal governments create a more comprehensive electronic filing system for the medical field to track individual patients. That way, each doctor could see exactly what drugs another doctor may have prescribed. He said many medical institutes already have a system in place but concluded, “More could be done.”