The opioid epidemic in the United States has become a “hot button” issue not only with federal prosecutors but among families at the dinner table. Nearly half a million people have died of opioid-related overdose in the last 20 years. The opioid crisis has touched many people personally, whether it is a family member’s struggle with addiction or their own. Highly relevant in the conversation of opioids is the duty of care of physicians when prescribing and the numerous cases of abuse of that duty through the operation of so-called ‘pill mills.’
Two pending cases in the Supreme Court of the United States brought by two physicians previous convicted of overprescribing opioids, (Kahn v. United States and Ruan v. United States) ask the court to contemplate whether a uniform criminal standard should be applied to physicians in opioid cases that permits a ‘good faith’ defense for accused physicians. Currently, the Controlled Substances Act of 1970 holds that doctors cannot prescribe opioids and other controlled substances unless there is a prescription for a legitimate medical purpose as determined by a physician acting in the usual course of his professional practice.
The phrase ‘legitimate medical purpose’ has given rise to different interpretations by federal appellate courts. Some federal appellate courts hold that physicians can be convicted for prescribing opioids regardless of the ‘legitimate medical purpose’ so long as the prescriptions were uncommon or not permitted by standards of accepted medical practice.
The two physicians in the cases cited above assert that in criminal cases involving physicians and the prescribing of controlled substances, the jury should be given instructions on what constitutes a ‘legitimate medical purpose.’ In effect, the physicians argue that the subjective state of mind of the physician when prescribing the controlled substance should be as important as whether the prescription does not conform to accepted medical practice.
Interestingly, the Centers for Disease Control and Prevention issued new draft recommendations that state that physicians can consider patients who are already taking high opioid doses when prescribing controlled substances. While the ‘legitimate medical purpose’ would not be a foolproof defense against allegations of overprescribing, if uniformly enacted it would change the legal analysis of those types of cases.
What is known for sure is that the issue of over-prescribing opioids will remain prevalent in the public discourse. Physicians must adapt quickly to ensure compliance with the law and rule changes that will most definitely accompany the public debate on the opioid crisis. Williams & Nickl has represented many physicians who face issues with IDFPR relating to prescribing opioids. If you find yourself in such a situation, Williams & Nickl can provide the help you need.