The Supreme Court will hear argument next week in two consolidated cases that will decide what standard applies when a doctor asserts a good faith defense to a criminal prosecution for unlawful drug distribution. The argument on Tuesday, March 1, will address the convictions of two doctors accused of running “pill mills” and seeking to profit in the midst of the national opioid crisis. According to the Government, “the petitioners simply cloaked themselves in medical garb while acting as drug dealers, lining their own pockets by dispensing addictive, dangerous, and lethal drugs, aware all the while that their profit-seeking came at the expense of their patients’ health.”
Yiulu Ruan was convicted in the Southern District of Alabama of conspiring to unlawfully distribute controlled substances, unlawfully distributing controlled substances, and other offenses, and was sentenced to twenty one years and two months imprisonment. His conviction was affirmed by the Eleventh Circuit. Shakeel Kahn was convicted in the District of Wyoming of conspiring to dispense and distribute controlled substances resulting in death, unlawfully dispensing controlled substances, and other offenses, and was sentenced to twenty five years imprisonment. His conviction was affirmed by the Tenth Circuit.
The doctors argue that the trial courts failed to properly instruct the juries on their good faith defenses. Ruan concedes that a physician otherwise authorized to prescribe controlled substances may be convicted of unlawful distribution if his prescriptions “fall outside the usual course of professional practice.” United States v. Moore, 423 U.S. 122, 124 (1975). He argues, however, that he should have been permitted to advance a subjective “good faith” defense, so that he could not have been convicted where in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fell within the usual course of professional practice. Ruan argues that a physician may not be convicted unless acting without a good faith medical purpose, meaning that “a physician who believes in good faith that her prescription serves a valid medical purpose may not be convicted simply because her belief proves to be unpopular.”
The Government argues that the Court should not allow a subjective standard to supply the basis for a good faith defense. The Government’s standard would allow a conviction where the doctor “did not even make an objectively reasonable attempt to ascertain and act within the bounds of professional medicine.” The Government argues that a doctor cannot have a good faith belief that his practices fall within the usual course of professional practice unless he makes an objectively reasonable “honest effort” to ascertain and adhere to professional medical boundaries, and the “wholly subjective” views of a doctor should not preclude conviction. Petitioners argue that their trial court jury instructions did not even meet this test, and their cases must be remanded for a new trial even under the Government standard.
The Supreme Court’s decision could be narrowly focused on the specific trial court instructions, or it could set a broader good faith standard either strengthening or seriously hampering Government efforts to prosecute doctors for unlawful drug distribution. The March 1 argument will be on live audio starting at 10 am on the Supreme Court website.