When is a Doctor Actually a Drug Dealer?

By Tess Cohen

The Supreme Court is hearing several cases that seek to help answer the question: when is a doctor who writes prescriptions for controlled substances selling a prescription, and therefore not practicing medicine but committing a crime. This is one of the more difficult questions the criminal law asks its jurors to answer, and the exact definition varies between federal circuits and state jurisdictions.

In the New York State courts, jurors have to determine whether a doctor accused of selling a prescriptions for a controlled substance wrote the prescription “other than in good faith.”  That opaque definition, which was created by legislation in 1986, appears to have derived directly from Supreme Court caselaw. In U.S. v. Moore, the Supreme Court approved jury instructions which stated that to find a doctor guilty of narcotics distribution, the jury had to find beyond a reasonable doubt that the doctor prescribed (in that case methadone) “other than in good faith for detoxification in the usual course of a professional practice and in accordance with a standard of medical practice generally recognized and accepted in the United States.”

Various different definitions have arisen since then about what it means to act in “good faith”. In federal courts, different circuits have approved different jury instructions on the issue, and the certiorari petitions in Ruan v. U.S. and Kahn v. U.S. argue that there are circuit splits on the issue. The petitioner in Kahn argues that several courts of appeals (including the Second Circuit) have an objective definition of good faith (that is whether the physician “reasonably believed” she was acting in good faith) versus other circuits which have a subjective definition of good faith (that is whether the physician “subjectively intended” to act within her professional practice).

The Supreme Court can create some increased uniformity in jury instructions, and whatever approach the justices adopt will likely trickle into the jury instructions in New York State, which are often modeled in this area of the law on federal case law. The uniformity may make it a little easier or a little more difficult to defend a prescriber accused of selling prescriptions illegally. 

However, there are limits to what can be accomplished as the Supreme Court cannot clarify the fundamental difficulty of this area of the law, which stems from the fact that the law has arguably the most amorphous actus reus of any area of criminal law.  Selling heroin, stealing property,  possessing a gun without proper licensing—all of these crimes have clearly and objectively defined acts. By contrast the physical act of a doctor writing a prescription is not in and of itself a crime. The criminal law often grapples with subjective mental states—when does a person “intend to defraud” for example—but it is rare that the act that creates the crime is itself amorphous. And there is no solving of this problem. Uniformity of jury instructions are all well and good, but the indicators of “other than in good faith” are deeply fact specific, and open to interpretation. In part because of this lack of clarity, the cases that get to court are the most extreme cases involving prolific prescribers whose patients are abusing or reselling the prescriptions they receive.

When I was Chief of the Prescription Drug Unit at the Office of the Special Narcotics Prosecutor for the City of New York, we relied on an instruction for what “other than in good faith” meant, which explained that it was illegal to prescribe outside the usual course of professional practice, and also gave a list of factors a jury could (but did not have to) see as relevant. The factors included:

•       Failure to conduct a physical examination

•       Unusually brief or perfunctory patient visits

•       An absence of patient symptoms

•       Indication by patient of past use of narcotic drugs or of alcohol abuse

•       Knowledge that the patient is an addict or habitual user

•       Dosages beyond that required for legitimate treatment

•       Payments that did not reflect normal fees for office visits

•       Physician's knowledge that the prescription or the drugs would be resold

The New York instruction created guideposts to help the jury determine whether or not a physician acted in good faith. But good faith will continue to remain a difficult question no matter the decision made by the Supreme Court. The Supreme Court will move the line that divides criminal and non-criminal acts by physicians slightly closer to the defense or the prosecution, but that line will forever remain murky, hard to define and intensely fact specific. Prosecutions of physicians for selling prescriptions raise unique questions not present in other areas of the law. If you or someone you love has been charged will selling prescription narcotics, you need an attorney who can help you navigate these murky waters. Our office may be able to help. Please call us for a consultation.