Legal Docket - Should prison be a punishment for prescribing opioids?

MARY REICHARD, HOST: It’s Monday, March 21st and we thank you for listening to The World and Everything in It from WORLD Radio! Good morning. I’m Mary Reichard.

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It’s time for Legal Docket.

Today, we cover one oral argument the justices of the U.S. Supreme Court heard this month.

Underlying this case is the opioid abuse crisis in the United States. The statistics are staggering: the Centers for Disease Control and Prevention reports that in the year 2019, an average of 38 people died every day from prescription opioid abuse. That translates to fourteen thousand people in that year alone.

REICHARD: And because physicians write those prescriptions, their prescribing practices are under scrutiny.

Listen to local news coverage in Alabama from TV station WJTC in February 2017:

REPORTER: Today a federal jury found Couch and Dr. Xuilu Ruan guilty of running what many referred to as a pill mill.

LAWYER: Our position from the get go through now that it was financially motivated and motivated by greed and that's why they were prescribing in the manner they were.

REPORTER: Their clinic was actually raided back in May of 2015, if you recall, and it was part of a multi -state DEA sweep.

The doctors’ convictions in part fall under the Controlled Substances Act. That law says that if physicians prescribe for a legitimate medical purpose within the usual course of professional practice, that’s fine.

The jury found these doctors did violate that law, in that they prescribed medicine outside the standard of care and that they put profits ahead of patients.

For that, they each received prison time. One of them, Dr. Xiulu Ruan, received a 21 year prison sentence.

EICHER: He appealed his conviction to the U.S. Supreme Court, which is considering his case along with that of another physician from Wyoming.

The legal question is whether a doctor can use the defense of “good faith” to fight charges of unlawful distribution of controlled substances.

Judges instructed the juries in these cases to find the doctors liable if their actions were so out of line with medical practice as to be unrecognizable.

REICHARD: That jury instruction is what the physicians now appeal.

They wanted instead to instruct the jury that so long as the doctors acted in good faith, they hadn’t acted illegally.

But what exactly is good faith? How should that be analyzed?

Here’s how Dr. Ruan’s lawyer, Lawrence Robbins, put it:

ROBBINS: The good-faith medical purpose test makes the best sense of the statutory text, this Court's case law. It enables the jury to focus on the question of intent, as it always does in criminal cases, and affords an appropriate berth for doctors and patients to make the best choices for the individual care of what is often invisible and yet real and intractable pain.

He argued a subjective standard is the right one. That is, did the doctor believe he was prescribing for a legitimate medical purpose?

But the federal government says no, the right standard is an objective one that doesn’t consider physician intent.

Here’s the government’s lawyer, Deputy Solicitor General Eric Feigin. He mentions the DEA; the initialism for the Drug Enforcement Agency. It has authority to oversee and sanction prescribers. And, the petitioners are the doctors.

FEIGIN: Although Petitioners are trying to disclaim it as much as they can, they really are asking this Court to transform their DEA registrations, which are premised on the idea that they're actually practicing medicine, into licenses to, at their own subjective views, violate the general rule that drug pushing is illegal. They want to be free of any obligation even to undertake any minimal effort to act like doctors when they prescribe dangerous, highly addictive, and, in one case, lethal dosages of drugs to trusting and vulnerable patients.

Some context is useful.

The government’s brief said Dr. Ruan often prescribed drugs to people without cancer that the FDA had only approved for people with cancer. He prescribed a particular opioid at twice the rate of the next higher prescriber. Sometimes he’d never even met the patient before writing a prescription for pain meds. And he had a large financial stake in a pharmaceutical company that manufactures a drug he often prescribed.

For his part, Dr. Ruan points out that at the time he was a board certified specialist in pain management with more than 8,000 patients. So it stands to reason that he’d prescribe more pain meds than the average physician would. He accepted insurance oversight and he didn’t take cash payments; his was no sham practice. The government’s lawyer at trial even said so.

Chief Justice John Roberts tried an analogy to sort out what kind of defense the doctors could mount. Listen to this exchange with Robbins, lawyer for the doctors:

ROBERTS: What if you're driving along the highway and you're pulled over for speeding and the officer tells you, look, it was 55 miles an hour, you're -- you get a ticket, and you say, oh, no, I thought it was 70 miles per hour? You still get the ticket, right?

ROBBINS: Of course.

ROBERTS: What if you say -- you're pulled over, the officer says, you know, you're speeding, it's 55, and you say, you know, I -- this is in the middle of Montana, I think it should be 70, and I was going under 70? You'd still get a ticket, right?

ROBBINS: Yes, you would.

But Robbins didn’t think that was the correct analogy.

He mentions “scienter.”

Or, scienter. That means knowledge that something is wrong.

ROBBINS: I don't want to bury the lead. The fact is this speeding is the classic case of a regulatory offense, the sort of situation in which scienter isn't even an issue. You don't get to defend the traffic violation based on your state of mind. But, when you're talking about sending doctors or anybody for that matter to jail for mandatory minimums of decades in prison, this is not a regulatory offense. This is an offense as to which this Court's case law on scienter applies with the most robust force it could.

Robust force, because a legal standard that is unknowable and nebulous violates the vagueness doctrine.

That says laws must be written so people know what conduct is punishable before you throw them in jail.

And remember what the Controlled Substances Act says: registered healthcare professionals can legally prescribe certain controlled substances so long as the drugs are "prescribed for a legitimate medical purpose within the usual course of professional practice.”

Justice Brett Kavanaugh said those are words upon which reasonable people can disagree.

He sounded incredulous in asking Feigin for the government about that.

KAVANAUGH: And so, if you're on the wrong side of the close call as the doctor who was acting before you get to the trial, if you're on the wrong side of the close call about what you believed, you go to prison for 20 years?

FEIGIN: Well, Your Honor, I don't really think that's going to be the case for doctors who make innocent mistakes because, if the jury is instructed properly, and we do think the jury instructions here were proper, and at a bare minimum, counsel was able to argue without objection that this is not just a negligence standard, that a jury has to really believe that the doctor wasn't even trying to act as a doctor.

Feigin underscored that the doctors in these cases were out of the mainstream. He gave categorical examples of types of doctors:

FEIGIN: Number one would just be the irrationally egotistical doctor, and these are the kinds of cases we have trouble even bringing, let alone convicting a doctor. It's a doctor who gets his license and his registration and he prescribes substances that are -- any other doctor would say are crazy and lethal.

Number two?

FEIGIN: …the absentee doctor, and one problem with their standard is it really rewards doctors for untethering themselves not only from the medical profession but from their patients. It's the kind of doctor who doesn't follow up on the background of his patients, doesn't make sure they're taking the medications, doesn't even conduct physical exams, doesn't check the database to see who else is prescribing opioids, and trusts nurse practitioners, who aren't DEA registrants…

Chief Justice Roberts pointed out Feigin was arguing about evidence, when this case is about legal standards.

ROBERTS: You're saying this is outrageous, they're doing all this, he doesn't care, we're worried about doctors. What -- but what is it in the statute that separates innocent conduct from unlawful conduct?

FEIGIN: Your Honor, I'm happy to -- I'm happy to argue the law. I just wanted to respond to the suggestion that this -- this doesn't really matter in the real world.

But lawyer Beau Brindley for the other doctor pointed out the trouble with leaving the analysis at that:

BRINDLEY: I think the risk here is -- is twofold. On the one hand, worrying about these extreme examples that are not going to come to fruition fails to take into account the terrible chilling effect that's coming and we see in the amicus briefs from the result of -- of having what turns out to be medical norms policed. And I think that raises the real risk that the DEA becomes a de facto national medical board that's never been authorized.

Justice Neil Gorsuch tried to pin the government down on what it needs to prove to show these doctors violated the law. Listen to this exchange with lawyer Feigin about mens rea, or “guilty mind.”

GORSUCH: And so are you saying that there has to be some form of mens rea here that the government has to prove? Yes or no?

FEIGIN: Yes…is an objective honest effort standard under which the defendant has to show some—"

GORSUCH: Objective honest efforts is like a—a contradiction in terms, Mr. Feigin.

I think one amicus brief filed by a board-certified doctor in pain and addiction medicine summed up things quite well.

This country has several crises going on with drugs.

One is substance abuse. The other, insufficient treatment of pain. At its root, these are questions of morality that the law may not be best placed to solve.

And that’s this week’s Legal Docket.

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