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Seven Things To Know When You Receive A Notice Of Investigation From The Department Of Health

Doctor’s Opioid Convictions Tossed After Supreme Court Ruling on Intent

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On March 3, 2023, a federal appeals court overturned the conviction of a doctor accused of unlawfully prescribing opioids after the U.S. Supreme Court issued a ruling making it harder to prosecute such cases. The Denver-based 10th U.S. Circuit Court of Appeals ruled that under last year’s Supreme Court’s decision, jurors were wrongly instructed on how to determine whether the doctor knowingly prescribed opioids in an illegal manner.

In June 2022, the Supreme Court ruled that the government needed to prove beyond a reasonable doubt that doctors accused of overprescribing medication intended to act without authorization. As a result, the trial court remanded his case back to the trial to vacate more than 20 of his convictions. Read the Supreme Court’s opinion and learn more.


A Good Faith Defense.

At issue in this case is the reading of the language of the Controlled Substances Act (CSA) of 1970. The act allows doctors and pharmacists to dispense certain drugs, such as opioids, that are categorized by their potential for abuse and medical value, even though it prohibits everyone from doing so. Additionally, it says that a prescription for one of these medications “must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.”

The defendant argued that the criminal standard providers face on a daily basis is applied inconsistently among federal circuits. In asking that the convictions be overturned, he also requested the court to establish a uniform standard that permits doctors to raise a “good faith” defense, said court documents. Juries could then consider whether doctors subjectively believed they were using their best medical judgment.

On the other hand, how far can a good-faith defense be stretched? Is it enough for doctors to simply argue that they believed the prescriptions they wrote served a legitimate medical purpose?

How Is the Fear of Criminal Conviction Affecting How Doctors Treat Pain?

Prosecutors argue that, at the very least, doctors must show they made reasonable efforts to learn the medical norms upon which they based their good-faith judgment. They claim that a mistake in understanding those norms would not rise to the level of criminal conduct. However, some worry that fear of criminal prosecution can deter doctors from using good medical judgment to treat pain.

An uneasy relationship between law and medicine remains at the epicenter of this case. With an ongoing opioid crisis, how should the law balance letting physicians exercise their best judgment while stopping egregious outliers simultaneously?  One thing is sure, the decision of this case could have significant ongoing implications for physicians’ scope to prescribe opioids in the future.

To read one of my prior blogs on this topic, click here.

Contact Health Law Attorneys Experienced in the Representation of Health Professionals and Providers.

The Health Law Firm and its attorneys have represented physicianspharmacists, nurses, clinics, dentists, pharmacieshealth facilities, and other health care providers in different cases involving allegations of over-prescribing narcotics and pain medications. These include criminal investigations by local police and law enforcement authorities, investigations by the U.S. Drug Enforcement Agency (DEA), U.S. Department of Justice (DOJ), complaints against professional licenses by the Florida Department of Health, investigations, and prosecutions by the Medicaid Fraud Control Units (MFCU), and other types of cases. Having attorneys familiar with the medical standards of care and guidelines for prescribing narcotics and having access to expert medical and pharmacy professionals who can testify as expert witnesses in such cases is also crucial. We have represented professionals in administrative investigations and administrative hearings at both the state and federal levels.

To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Hoffman, Jan. “Were These Doctors Treating Pain or Dealing Drugs?” The New York Times. (February 28, 2023). Web.

Ducassi, Daniel. “10th Circ. Panel Nixes Doctor‘s Pain Med Convictions.” Law360. (March 3, 2023). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620

Attorney Positions with The Health Law Firm.  The Health Law Firm is always looking for qualified attorneys interested in the practice of health law. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: [email protected] or fax to: (407) 331-3030.

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