Gorsuch questions doctors’ mental state in ‘pill factory’ cases
U.S. Supreme Court justices on Tuesday heard oral arguments in the cases of two doctors convicted of so-called “surgerypill mills.” As judges asked questions to determine the proper way to interpret the criminal law at issue, the conversation often returned to the role of mens rea – or mental state. Specifically, the judges wanted to know how to separate a doctor who sincerely believes he is doing the right thing by prescribing pills, but who is breach of standard of care (either through negligence or more) of a physician who is criminal over-prescription medication. The latter is the domain of prosecution efforts; the first, of course, is the realm of possible civil actions.
The consolidated files, Ruan v. United States and Kahn v. United States, together ask judges to settle a dispute in circuit court over a physician’s right to assert good faith as a defense to criminal charges under the Controlled Substances Act.
This law makes it illegal “any person knowingly or intentionally[fabriquerdistribueroudispenser»certainessubstancescontrôléesinterditessansêtreexplicitement«autorisé»parlaloiLaloiautorisenaturellementetlogiquementlesmédecinsàprescrirecertainsmédicamentsselonunemyriadederèglesetderèglementsMaisentantquerequête en bref de certiorari dans Rouan fait remarquer, “[a] physician otherwise licensed to prescribe controlled substances may be found guilty of unlawful distribution under 21 USC § 841(a)(1) if his ordinances’outside the usual course of professional practice‘” — the latter wording having been pronounced by the Supreme Court in United States vs. Moore (1975).
In all federal circuits except the Eleventh Circuit, physicians are permitted to raise their own good faith beliefs as a defense if sued. The second, fourth, and sixth circuits focus on a physician’s “reasonable belief” that prescriptions were medically valid and appropriate. “Reasonable belief” is generally a broad, overarching standard that is objective, not subjective. In contrast, the First, Seventh, and Ninth Circuits are only concerned with the subjective beliefs of physicians. The Eleventh Circuit does not recognize either version of the defense when a doctor has been shown to have prescribed controlled substances in violation of generally accepted medical standards.
Or, as the Roan brief Noted“the circuits are deeply divided” – to put it mildly.
the Roan the case involves Dr. Ruan Xiulu, a physician who ran a medical clinic and pharmacy in Alabama. Speak brief, Dr. Ruan has been charged with unlawful distribution of controlled substances under the Controlled Substances Act, racketeering conspiracy, health care fraud conspiracy, wire fraud conspiracy and related charges. Prosecutors alleged that Ruan improperly issued more than 300,000 prescriptions for controlled substances over a four-year period, making him one of the nation’s top fentanyl opioid prescribers. Additionally, Ruan is said to have taken a financial stake in the drug manufacturers. In the companion case, Dr. Shakeel Kahn is accused of exchanging drugs for money, sometimes without corresponding examination or proper documentation.
At Ruan’s trial, the government acknowledged that some prescriptions were given to “legitimate patients” at the clinic, but argued that others “were outside of professional standards”. Prosecutors provided evidence that the doctor prescribed too many opioids, failed to recognize patients’ red flags, failed to make proper referrals, and failed to keep proper records. The defendant physician presented his own strong case, offering expert testimony that his treatments were recommended in good faith. Likewise, Kahn was convicted despite his argument that he honestly believed he was appropriately providing medication to his patients.
In both cases, it is the jury instructions provided by the court which mention, but perhaps did not sufficiently emphasize, the role of the doctor’s good faith as evidence overturning a verdict of guilty.
Attorney Lawrence Robbins argued on behalf of Ruan and was the first to face questions based on the judges’ analogy. Chief Judge John Roberts proposed a hypothesis in which a driver was stopped for speeding when that driver honestly believed that he was traveling at a legal speed, and then a corresponding hypothesis in which the driver knew he was driving over the legal limit, but believed the law have allowed his speed. “You would still have a ticket, wouldn’t you?” asked Roberts – and Robbins agreed.
Justice Samuel Alito turned the conversation to a strict grammar-based interpretation of the law in question, commenting that his “former English teacher” would disagree with Robbins’ interpretation of the law.
Disagreeing with Alito’s view of the law, Robbins made a statement about “what the world would look like” according to Alito’s interpretation of the law.
“In this world, a doctor’s only defense is that they didn’t know they were prescribing a controlled substance,” Robbins said. “I suggest that would mean the only doctors who could possibly be acquitted prescribed the drug while in a coma.”
Justice Neil Gorsuch chimed in with a series of very helpful questions for Robbins.
“Let’s assume Judge Alito’s grammar teacher is right,” Gorsuch began. “I know you don’t want to, but let’s assume that.”
Gorsuch then led Robbins through a possible interpretation of the law. First, Gorsuch proposed that the exceptions enumerated in the statute require an element of mens rea to distinguish lawful conduct from unlawful conduct; then he suggested that the government need not deny all of the exceptions in the statute, but instead would have the burden of proving all of the statutory elements after a defendant bears the burden of production and invokes a particular exception .
“I’m okay with all of that,” replied Robbins, who then began to elaborate.
“Be careful,” Gorsuch warned, interrupting Robbins.
“You have just been helped, adviser”, Justice Sonia Sotomayor points out to Robbins.
When Khan’s lawyer, Handsome Brindley, stepped onto the podium, he focused on the underlying purpose of the statue. Arguing that the law was intended to prevent drug trafficking, Brindley argued that Robert’s analogy of speeding did not accurately capture the dispute before the Court.
Justice Brett Kavanaugh raised the role of jurors in prosecutions under the law. If a doctor were to present a “wacky theory about what he or she subjectively believed” to be the standard of medical care, the jury will almost certainly not believe the defense.
Alito, however, was unhappy with the scenario Kavanaugh conjured up.
“And if the jury doesn’t believe it?” Alito asked Brindley. “What if a doctor really sincerely thinks that an objectively outlandish process is the legitimate practice of medicine? In your opinion, this doctor should be acquitted, right? »
Brindley replied that indeed such a doctor should be acquitted, as his actions would not sufficiently constitute drug trafficking within the meaning of the law.
Alito hammered the point again.
“But what if the doctor legitimately believes that legitimate medical practice is to give people who are addicted to drugs the drugs they need to satisfy that addiction. . . Do you think this doctor should be acquitted? he asked Brindley.
The lawyer agreed, but clarified that such a situation “is not very likely to occur”.
“No, it’s not likely,” Alito joked, “but that’s what your interpretations mean.”
Once again, Judge Gorsuch stepped in with an aide.
“Why would that be, lawyer?” asked Gorsuch. “If the evidence is that legitimate medical practice does not include your client’s behavior in this case, and the jury might infer that your client knew he would be guilty even though he had idiosyncratic opinions about what medical practice should look like.”
Justice Amy Coney Barrett then offered what she called “a closer analogue” to the speed limit example presented by the Chief Justice. Barrett’s example was a driver who knew he was going over the posted speed limit but thought he was entitled to a legal exception based on the fact that he was transporting a child to the emergency room.
Brindley agreed, saying the only thing that makes a doctor write a prescription inappropriate is the lack of a legitimate medical purpose. “If he’s sincerely wrong about it,” Brindley argued, “he doesn’t have a guilty mind and shouldn’t be convicted” in criminal court.
Deputy Solicitor General Department of Justice Eric Feigin argued on behalf of the Department of Justice and faced multiple questions from judges about how the law should be drafted.
Justice Gorsuch again returned the discussion to the concept of mens rea.
“I understand that the government will never carry a closed case,” Gorsuch said sarcastically, asking Feigin to hypothetically assume a closed case where a jury does not believe a doctor acted for a legitimate medical purpose.
“That person is unable to protect themselves behind any requirement of mens rea and is essentially subject to a regulatory felony, punishable by 20 years or possibly life,” Gorsuch said.
Law&Crime spoke with a law professor, a nurse and a bioethicist Kelly Dineen, who co-authored the amicus brief supporting the petitioners in the case. Dineen argued that “the 10th and 11th Circuits essentially eliminated all aspects of the guilty mental state” in their approach, which she said was problematic for a number of reasons. Among them, it gives the federal government “an outsized role in regulating medical practice.” Dineen also said she was “cautiously optimistic that the Court will render a favorable opinion to the petitioners” after hearing oral argument on Tuesday. Although she was “not sure which route the Court will take”, she said she believed the case would go to circuit court.
[image via Erin Schaff/POOL/AFP via Getty Images]
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