Were These Doctors Treating Pain or Dealing Drugs?

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In the last 15 years, as federal agents raided pill mills and prosecutions increased, the language around “legitimate medical purpose” and “professional practice” has been interpreted differently by different federal appellate courts. Those readings direct how a judge instructs a jury on what it must find to convict or acquit the prescriber.

In a brief asking for a clear legal standard, health-law and policy professors argue that several appeals courts — including the U. S. Court of Appeals for the 11th Circuit, which upheld Dr. Ruan’s conviction, and the U. S. Court of Appeals for the 10th Circuit, which upheld Dr. Kahn’s — permit doctors to be convicted if they deviate from accepted medical practice, without a jury also having to find that the doctor did so “without a legitimate medical purpose.” That standard, they say, lacks a critical component of criminal law: intent.

That element, the professors wrote, distinguishes well-meaning, possibly negligent doctors from criminal ones. Without the requirement of intent, the Controlled Substances Act “has been weaponized against practitioners in reaction to the overdose crisis,” they said. Prosecutions have increased, they said, while the standards for conviction have “steadily eroded.”

The professors argue that this broad standard can ensnare doctors who determine that an individual patient requires a prescription of opioids that exceeds conventional limits. Doctors who prescribe medications off-label, a common practice, could also fall under that standard.

Conversely, other circuits require that prosecutors prove beyond a reasonable doubt that doctors knew not only that they were deviating from accepted medical practice but also, and crucially, that they were prescribing without a legitimate purpose.

But how far can a good-faith defense be stretched? Does it suffice for doctors to simply argue that they believed the prescriptions served a legitimate medical purpose?

“Good faith,” then, would seem to be a subjective standard; “legitimate medical purpose,” an objective one. If so, the two would inherently be in conflict.