Doctor or Drug Dealer: Supreme Court Debates When Mis-Prescribing Drugs Becomes Illegal

There have been dozens of stories of healthcare providers in the U.S. abusing their ability to prescribe medication over the past few years. The opioid crisis continues to devastate tens of thousands of American families every year.

The Supreme Court is now considering a case that involves two doctors accused of operating pill mills. The outcome could set a national legal precedent that would distinguish between unconventional medical practices and illegal drug operations.

When Is It Illegal to Mis-Prescribe Medication?

The justices are facing a complex legal dilemma: When should a doctor face legal consequences when they mis-prescribe medication? They discussed the language outlined in the Controlled Substances Act, while debating whether there is ever a good-faith exception for doctors prescribing the wrong medication. Some justices expressed concern with the idea of sending doctors to prison for years over a common medical error.

Both doctors involved in the case were accused of illegal drug distribution.

Dr. Xiulu Ruan was accused of running a clinic in Alabama with a business partner that issued nearly 300,000 prescriptions for controlled substances in just four years, making it one of the nation’s leading sources of prescriptions for some types of fentanyl drugs.

Dr. Ruan has been serving a 21-year sentence in federal prison after being convicted in 2017. He prescribed quick-release fentanyl drugs approved only for cancer patients to patients suffering from more common ailments, including neck, back, and joint pain. Prosecutors say he would often write prescriptions without even seeing patients.

Dr. Shakeel Kahn is serving 25 years and was accused of writing prescriptions in Arizona and Wyoming in exchange for payments based roughly on the current street value of the drugs. Prosecutors said he had accepted payment in cash as well as personal property, including firearms.

Lawyers for both doctors are asking the court to overturn their convictions, arguing that the criminal standard the physicians faced is applied inconsistently among the federal circuits. They want the court to establish a uniform standard that permits doctors to raise a “good faith” defense when mis-prescribing medications to patients.

During yesterday’s debate, the justices focused their attention on one particular line in the Controlled Substances Act. The law says prescriptions that were “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice,” may be exempt from legal penalties.

According to Eric J. Feigin, a lawyer for the federal government, the exemption represents an agreed-upon set of ethical norms in the medical profession, and both Kahn and Ruan violated these norms.

“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,” he said.

The lawyers for both doctors said the standard was a subjective one, based on whether the doctors had acted in good faith when they prescribed the drugs even though they acted outside of generally accepted medical practices.

“The problem is that medical standards evolve,” said Lawrence S. Robbins, a lawyer for Dr. Ruan. “It’s a constantly evolving matter. And that deference to patients and their illness and their doctors requires a subjective standard.”

Beau B. Brindley, a lawyer for Dr. Kahn, said limiting or getting rid of this exemption would have a “terrible chilling effect” on the medical industry, one that would effectively turn the Drug Enforcement Administration into “a de facto national medical board.”

Chief Justice John G. Roberts Jr. said that a subjective understanding of the law doesn’t excuse the defendants’ criminal behavior. He used the analogy of a motorist driving 70 mph in a 55-mph zone. Just because the motorist thought the speed limit was 70 mph doesn’t mean he wasn’t breaking the law.

Robbins responded by saying that different rules apply for serious criminal charges.

“You don’t get to defend the traffic violation based on your state of mind,” he said, adding that more consideration is required “when you’re talking about sending doctors, or anybody for that matter, to jail for mandatory minimums of decades in prison.”

Justice Amy Coney Barrett used a different analogy by supposing that the speed limit may not apply in certain situations. “Except as authorized by law, you must drive under 55 miles per hour,” she said.

For example, a motorist may drive above 55 mph in a 55-mph zone if they are rushing someone to the hospital in a medical emergency. They know in good faith that the speed limit doesn’t apply to them in this situation.

Justice Brett M. Kavanaugh agreed. “If the statute says, ‘except as authorized’ and you sincerely believe you’re authorized to drive 100 to get your child to the hospital, you should be acquitted, right?” he asked.

Kavanaugh then extended the same good-faith analogy to doctors Kahn and Ruan.

“The doctor may have violated that objective standard but might have legitimately thought that the standard was somewhat different and, therefore, in those circumstances should not be sent away for 20 years to prison, right?” he asked.

The debate then turned into something of a grade school grammar lesson.

Justice Samuel A. Alito Jr. referenced what he learned from his “old English teacher” and said the placement of the phrase “knowingly and intentionally” in the statute, based on the exception on which the doctors relied, meant it did not apply to the exception, undercutting the doctors’ argument that subjective good faith matters.

Alito then added. “The problem is what an adverb can modify,” he said. “It can only modify a verb.”

Justice Stephen G. Breyer disagreed. “I had a different English teacher, Ms. Chichester,” he said, “who told us an adverb could modify a verb, an adjective or another adverb.”

The chances of these doctors being set free remain slim to none, but legal experts say the outcome could set a legal standard for doctors that mis-prescribe medication.

Medical experts say the case is not a question of whether Ruan and Khan are bad doctors.

“It’s about all the other doctors in the country who intend to do the right thing, but are dealing with difficult cases,” said Dr. Stefan Kertesz, a professor of medicine at the Heersink School of Medicine at the University of Alabama at Birmingham and an addiction researcher. “Are we all at risk of criminal investigation based on making decisions that involve difficult medical trade-offs?”

Kelly Dineen, who teaches health law at Creighton University School of Law in Nebraska, said the good-faith argument shouldn’t be read as a “get out of jail free” card. “The jury still has to assess their credibility,” she said. “But doctors should be allowed to bring that defense.”