Short Take: Of Docs and Dealers

While most people were losing their heads over the “big” Supreme Court decisions about guns, abortion and prayer, there was another ruling, unanimous, that would have (or at least, should have) been huge in less controversial times to criminal defense lawyers. In Ruan v. United States, the Supreme Court reversed the convictions of two medical doctors, for running what the government contended were “pill mills.”

Petitioners Xiulu Ruan and Shakeel Kahn are both doctors who actively practiced medicine. They both possessed licenses permitting them to prescribe controlled substances. The Government separately charged them with unlawfully dispensing and distributing drugs in violation of §841. Each proceeded to a jury trial, and each was convicted of the charges.

At their separate trials, Ruan and Kahn argued that their dispensation of drugs was lawful because the drugs were dispensed pursuant to valid prescriptions. As noted above, a regulation provides that, “to be effective,” a prescription “must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR §1306.04(a). We assume, as did the courts below and the parties here, that a prescription is “authorized” and therefore lawful if it satisfies this standard. At Ruan’s and Kahn’s trials, the Government argued that the doctors’ prescriptions failed to comply with this standard. The doctors argued that their prescriptions did comply, and that, even if not, the doctors did not knowingly deviate or intentionally deviate from the standard.

Regardless of what these two docs were really up to, the issue raised was the standard by which the government would have physicians found to be criminals for not giving out drugs the way the government thought they should. After all, they were practicing physicians. They were authorized to prescribe drugs. They contended that they believed their scripts to be medically proper, or at least didn’t intend them to be otherwise. They might have been wrong, but does that make their prescriptions criminal?

Well yeah, the government argued. If their scripts were “objectively unreasonable,” then criminals they were. The Court, by Justice Breyer, disagreed.

Section 841 contains a general scienter provision— “knowingly or intentionally.” And in §841 prosecutions, a lack of authorization is often what separates wrongfulness from innocence. Defendants who produce evidence that they are “authorized” to dispense controlled substances are often doctors dispensing drugs via prescription. We normally would not view such dispensations as inherently illegitimate; we expect, and indeed usually want, doctors to prescribe the medications that their patients need. In §841 prosecutions, then, it is the fact that the doctor issued anunauthorized prescription that renders his or her conduct wrongful, not the fact of the dispensation itself. In other words, authorization plays a  “crucial” role in separating innocent conduct—and, in the case of doctors, socially beneficial conduct—from wrongful conduct.

If somebody who isn’t “authorized” to prescribe drugs is prosecuted for a violation of 18 USC § 841, it would  require proof that the conduct was “knowing or intentional,” which for people selling drugs who aren’t physicians, doesn’t really amount to a particularly difficult burden. But when the defendant is a doc, and when the doc has authority to “sell” drugs by writing a prescription, and when the doc has the authority to state that he does so for what he believes to be sound medical reasons, this scienter element can be very hard to prove. And it should be.

The problem isn’t that physicians can’t, by dint of their degree or profession, also commit crimes or otherwise engage in nefarious practices to make money. Hey, docs like money too, and the Porsche won’t run on love alone. However, distinguishing between physicians who hold differing views of the necessity or propriety of medications puts a physician at enormous risk of prosecution for engaging in the good faith practice of medicine when there is another doc who sniffles at the scripts he writes. Too many pills? Too free with them?

There may well be a line beyond which a doc is the pusher, but using the test of “objectively unreasonable,” which is essentially another way of saying “negligent” would create an outrageous risk of prosecution for docs who aren’t as parsimonious in their prescriptions as the opioid scolds want them to be.

As many patients with chronic pain, as well as patients with acute pain, have come to realize, physicians have become very reluctant to prescribe adequate, either in terms of efficacy or duration, pain medications for fear of crossing a line and setting off a bell at DEA headquarters. That might make life easier for prosecutors, but presents a grave risk for physicians and a serious problem for their pain-ridden patients.

8 thoughts on “Short Take: Of Docs and Dealers

  1. Hunting Guy

    Thank God for this ruling.

    Police, carpenters, bricklayers, firemen, military, farmers, all those that wore out their bodies while young are applauding this decision.

    From personal experience as a veteran, we need the pain relief to have any quality of life. We aren’t getting it because the doctors are afraid we will become junkies or sell the drugs. Over the counter stuff can’t relieve the unremitting pain.

    You would think that if the X-rays show worn out joints or pieces of shrapnel in your body it would be a major indicator of pain, but no, the doctor says, “We can’t give you the meds you need because the feds will say I’m a pill mill.”

    Hopefully, people will start getting the relief they need.

    This is one decision that both sides can agree on.

    (Sorry for the rant but this affects me personally for myself and a lot of my friends,)

    1. orthodoc

      Thank God for this ruling times three. Slippery slope arguments are not favored here, but I saw this trend of criminalizing medical practice about drugs easily metastasizing to other areas. Without much reliance on my baseline paranoia and tendency for catastrophic thinking, I imagined the day when surgery would be construed as assault and advice-giving construed as abetting a crime. That day still might come, but Ruan makes it harder. (Charges are going to be about Medicare billing fraud, I am guessing.)
      PS The VA has some of the nation’s best pain management programs. If you are not getting what you need, Mr Hunting Guy, politely escalate your concerns. Also, I think I read somewhere that worn out joints can be treated with more than just pills, quite effectively in many cases.

      (Aside to our host: I think the hotlink in the first paragraph is broken. On my browser, it takes me a T Edsall OpEd that is not on this topic) [Ed. Note: Thanks. Fixed. I note you’re the first to notice that the link was wrong.]

  2. Pedantic Grammar Police

    I’m usually the contrarian around here, but I agree on this one. I know a few people who suffer because doctors are afraid to prescribe the pain medication that they need. It’s interesting that it took this “conservative” court full of Trump appointees to finally recognize and mitigate the damage that the out-of-control DEA was doing to one of the few legitimate functions of our corrupt medical cartel.

  3. Paleo

    I agree with the thank Gods. I’m under the care of a palliative doctor because of a long term chronic condition that involves pain. Opioids no less . It’s been 2 1/2 years now and even though I’ve long since satisfied the doctors that I’m being conservative their caution and that of the pharmacist still makes it really hard. No more than 30 days at a time. No automatic refills. Must visit the doctor before every refill, by state law, so even though I’m very stable I’ve got to waste time and resources having a “no change” conversation with a doctor once a month. And don’t even try refilling the next prescription more than 2 days before the month is up, so every month is a stressor due to the risk of something causing it to be late, meaning a couple of really sore days.

    And I suspect without being certain that on the scale on pain patients I’m up toward the “not that bad” part of the scale. There are people in agony that can’t get relief because of our useless war on drugs.

  4. Fubar

    The DEA: Nixon’s revenge
    On hippies when he was unhinged.
    Like a cancer it grew,
    Honest doctors to screw.
    Ruan trims it a bit at the fringe.

  5. Mike V.

    Between Ruan and West Virginia, the administrative state have a very bad week at SCOTUS. It might force legislators to actually legislate for a change.

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