WASHINGTON (CN) — Medical doctors sentenced to decades in prison for writing hundreds of thousands of scripts for painkillers clung to criminal intent, or lack there of, as they asked the Supreme Court to overturn their convictions. To decide their fates, the justices found themselves returning Tuesday to elementary school grammar lessons.
“Do the adverbs knowingly or intentionally modify the introductory clause except as authorized by this subchapter,” asked Justice Samuel Alito, focused on the text of the Controlled Substance Act that undergirds the case.
The Bush appointee said his English teacher would have said no. Justice Stephen Breyer disagreed.
“I had a different English teacher, Miss Chichester, who told us an adverb could modify a verb, an adjective, or another adverb,” the Clinton appointee said.
“I can’t remember my grammar teacher’s name, but let’s put that aside,” chimed in Chief Justice Roberts.
The case before the court stems from the convictions of three doctors, two of whom ranked as the top prescribers of a certain kind of fentanyl in America during a period from 2011 and 2015 when they wrote almost 300,000 prescriptions for the schedule II drug and other controlled substances like oxycodone and morphine out of their clinic in Mobile, Alabama. Some of these prescriptions were written without seeing patients, and most of them were for common ailments, not severe pain.
An undercover agent from the Drug Enforcement Administration visited the office of Xiulu Ruan and John Patrick Couch, and was able to obtain opioids after less than one minute.
The appeal from the two doctors was consolidated for high court arguments Tuesday with that of an Arizona doctor, Shakeel Kahn, who had a patient overdose two days after he wrote high-dose prescriptions for oxycodone, carisoprodol and alprazolam in exchange for $1,250.
"[Kahn] generally operated his practice on a 'cash-only' basis, although he occasionally accepted firearms and other personal property as payment," the government wrote in an opposition brief.
As laid out in the Controlled Substances Act, a doctor can distribute a controlled substance if “acting in the usual course of his professional practice.” The disagreement between the doctors and the government is what exactly acting in good faith means and how it should affect prosecutions.
“A doctor may not be convicted under Section 841(a)(1) unless the government proves that her prescriptions were made without a good faith medical purpose,” said Lawrence Robbins, an attorney for Ruan with the firm Robbins, Russell, Englert.
Robbins claims the good-faith medical-purpose test makes the best sense of the statute’s text, the court’s case law, and principles of federalism in the statute.
Kahn's attorney Beau Brindley meanwhile warned about policing medical norms and claimed that the CSA was supposed to prohibit only the use of prescriptions in drug trafficking.
“I think that raises the real risk that the DEA becomes a de facto national medical board that's never been authorized,” Brindley said.
The government contends that the doctors are seeking a court sanction for their own views on rules that criminalize pushing drugs.
“They want to be free of any obligation even to undertake any minimal effort to act like doctors when they prescribe dangerous, highly addictive, and in one case lethal dosages of drugs to trusting and vulnerable patients,” said Eric Feign, a deputy U.S,. solicitor general.
Giving no clear sign of how they’d rule, the justices seemed split over allowing doctors to make up their own standards, the wording of the statutory text, and the line between prescribing medicine and dealing drugs.
Chief Justice Roberts offered a hypothetical involving speed limit. The Bush appointee said you would get a ticket if you were speeding regardless if you knew and chose not to obey the speed limit.
“What if instead of speed limit, we're talking about what is understood … as a course of professional treatment or normal medical practice,” Roberts said. “You don't get to say, OK, I realize the standard is whatever this many prescriptions a month or year, but I think it should be this.”
Justice Brett Kavanaugh looked toward objective standards in medical practice and how mistaking those standards shouldn’t lead to long prison sentences.
“The doctor may have violated that objective standard but might have legitimately thought that the standard was somewhat different, and therefore in those circumstances should not be sent away for 20 years to prison,” the Trump appointee said.
Alito asked what would happen to doctors who think there is a legitimate need to prescribe drugs to people who are addicted to them.
“What if the doctor legitimately believes that legitimate medical practice encompasses giving people who are dependent on drugs, the drugs they need to satisfy that dependency,” Alito asked. “That's what the doctor really thinks deep down.”
Briefing on the case from health care experts acting as friends of the court warn against the adoption of broad new standards that could wreak havoc on doctors and patients’ lives.
“The uncertainty that arises from changing philosophies on opioid prescribing, coupled with an unclear standard for prosecution under the CSA, can have a ‘chilling’ effect on care, and lead good providers to fear that they will be taken as bad actors even when exercising their best judgment in caring for their patients,” the National Pain Advocacy Center said in a brief.
The center claims that doctors are increasingly not prescribing opioids for fear of oversight against their medical judgment.
“Proper interpretation of the CSA is vital to the tens of millions of Americans who must contend every day with severe and chronic pain,” the brief states. “The appropriate standard for criminal intent under Section 841(a) must protect providers who are good actors and the patients in their care, and not create incentives for patient abandonment or neglect.”
Follow @KelseyReichmann
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
