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.