- The Washington Times - Monday, June 27, 2022

The Supreme Court sided Monday with a pair of doctors facing long prison terms for aggressively prescribing pain pills in a case that could make prosecutors think twice about how they go after doctors amid the opioid epidemic.

In a unanimous decision, the court told the federal appeals court to take a second look at the convictions because juries were unable to consider the doctors’ “good-faith” defense, or that they were prescribing pain pills because they legitimately thought their patients needed them.

The Controlled Dangerous Substances Act of 1970 requires prosecutors to prove the doctors knew they were distributing drugs illegally.

“The government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner,” Justice Stephen G. Breyer wrote for the court.

The decision’s broader implications are that it may force prosecutors to recalibrate how they approach prescribers’ culpability in the opioid crisis.

More than 107,000 people died of drug overdoses in 2021, a staggering record fueled in large part by illicit fentanyl, an incredibly potent opioid. Many people got hooked on prescription opioids in the past few decades, so prescribing practices have come under scrutiny.

On the other hand, the National Pain Advocacy Center said that scrutiny has an adverse chilling effect and is forcing doctors to avoid prescribing opioids — even if it goes against their medical judgment.

The justices heard appeals from doctors Xiulu Ruan, who the government accused of running a “massive pill mill” in Mobile, Alabama, and Shakeel Khan, who practice in Arizona and Wyoming and was accused of targeting addicts and distributing prescriptions that resulted in one patient’s death.

Each of the doctors is facing more than two decades in prison after being convicted of running what prosecutors described as pill mill operations.

The justices, who heard arguments on the case in February, did not allow the doctors to walk free but did allow them to raise legal issues around their trials in the lower courts.

The decision was unanimous but Justices Samuel A. Alito Jr., Clarence Thomas and Amy Coney Barrett filed a concurring opinion.

Trevor Burrus, a research fellow at the Cato Institute, said the court showed there must be a distinction between a “bad doctor” who behaves earnestly but mistakenly and is subject to malpractice suits, and one who is a criminal dealing drugs.

“At a time when doctors around the country are afraid of being accused of ‘overprescribing’ opioids, the Supreme Court today correctly and unanimously held that doctors who earnestly believe they are practicing medicine — unlike those who are little more than drug dealers — have a defense to such charges,” Mr. Burrus said. “This comports with over a century of law, and it is an important step in the fight to keep law enforcement from dictating medical standards.”

Richard Ausness, a law professor at the University of Kentucky who tracks the opioids crisis, said there was a rash of prosecutions for overprescribing between 1995 and 2010, and many were open-and-shut cases, though recent prosecutions might be thorny.

“I suspect there is an over-deterrence problem in some of the more recent cases when the government prosecutes doctors in close-call cases,” he said. “It certainly sends a message to all doctors to exercise caution when prescribing opioids or risk going to prison for 20 years. Even if the doctor wins, he or she will have to spend thousands of dollars defending themselves in court.”

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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