Federal Criminal Defense Lawyer Warns Physicians of New Potential Criminal Liability When Prescribing

January 14 23:06 2022
Based on Upcoming Supreme Court Case, Providers Could Be Imprisoned for Prescribing Opioids in ‘Good Faith’ Under Controlled Substances Act. What This Would Mean for Their Practice and Patients

Federal criminal defense attorney Ronald W. Chapman II of Chapman Law Group is urging the medical community to understand what is at stake for their practice, if the U.S. Supreme Court decides that the federal government, under the Controlled Substances Act (CSA), can impose criminal liability upon physicians, pain management specialists, and other medical practitioners in instances where there was none previously.

In what Chapman calls the most significant opioid-related case in nearly five decades, Ruan v. United States will determine whether physicians could face imprisonment if their prescribing opioids and other controlled substances results in a medical error — despite making a good faith effort in prescribing.

As Chapman explains, the ruling could mean agencies such as the Drug Enforcement Administration (DEA) will no longer have to prove that a prescriber was aware of breaching the standard of care, only that it was done. As a result, he adds, practitioners will be less apt to treat anyone who legitimately needs pain medication, out of fear of medical license loss and federal incarceration.

How Would Prescribing Become a Criminal Act?

Standard of care violations, as Chapman states in a newly filed amicus brief to the Supreme Court, were never specifically authorized by Congress or the CSA. Further, he adds, for illegal prescribing to be considered a criminal act, a physician must have “knowingly or intentionally” done so. 

“[H]undreds of thousands of physicians and other healthcare professionals with the authority to prescribe essential medicines to treat pain or opioid use disorder who lack the requisite criminal intent and evil purpose, should not have to face the government’s enormous resources and risk imprisonment for conduct that amounts to medical error, negligence, or at most, recklessness,” Chapman says.

To do so otherwise, Chapman says, would conflict with U.S. v. Moore, the 1975 Supreme Court case that serves as a landmark for hundreds of opioid- and pain management prescription-related decisions. In Moore, the Court authorized use of the CSA against physicians who forsake their roles as medical professionals and instead become the equivalent of drug dealers, prescribing “without a legitimate medical purpose” and “outside the usual course of professional practice.” 

Yet, Chapman explains, since Moore, the U.S. Department of Justice has systematically expanded this definition, instead using the CSA to prosecute mere disagreements with prescribing decisions. 

Standard of Care ‘Not a Proxy’ for CSA Requirements

In his practice of defending healthcare-based federal criminal cases, Chapman has represented prescribers accused of CSA violations, such as overprescribing or inappropriately dispensing controlled substances. He says these pain management specialists, chiropractors, urologists, and other medical professionals should only have been accused of violating administrative rules, which are normally handled by state licensing boards. Instead, Chapman says, they wrongly faced criminal charges.

For example, in one of Chapman’s biggest cases, a Michigan physician was targeted by the DEA in an alleged overprescribing scheme. It led to a high-profile criminal trial, the possibility of prison time, and the government seizing $6 million in assets. Chapman and co-counsel were able to clear the physician’s name by successfully arguing how the pain management guidelines apply to the CSA and the standard of care.

Chapman emphasizes that not everything related to breaching the standard of medical practice, including controlled prescription drug matters, equates to criminal liability and should be punishable through prison sentences. Yet, he adds, if the Supreme Court decides against the physician in Ruan, then all prescribers could find themselves facing increased — and unjust — criminal exposure, simply for doing what they believe is in “the course of professional practice” and done for “a legitimate purpose” within a complicated medical environment.

“The standard of care is not a proxy for the CSA’s requirements,” he concludes, “nor should it be used as a mechanism to ease the prosecution’s path to conviction for violations of a standard without proving the defendant’s purposeful intent to engage in illicit drug trafficking.”

About Ronald W. Chapman II and Chapman Law Group

As chair of Chapman Law Group’s White Collar Defense & Government Investigations practice, Ronald W. Chapman II represents national medical practitioners and entities in healthcare fraud matters, government investigations, and allegations of unlawful prescribing and drug/opioid trafficking. A former prosecutor, he has unique insight into how federal agencies (DOJ, DEA, FBI, FDA) approach healthcare-based criminal actions.

Chapman Law Group is the premier healthcare-based federal criminal defense law firm in the U.S. Its nationally recognized team of defense lawyers works with physicians and prescribers, advising on state and federal regulations surrounding controlled substances and CSA matters, ensuring compliance, and preventing investigations and DEA enforcement actions.

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