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Adam M. Gershowitz column: Prescribing opioids without fear of prosecution

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A small number of doctors fueled the opioid crisis by prescribing millions of pills to people who never should have received them. As a result, thousands of people died and some bad doctors went to prison.

Many good doctors also began to worry they could get into deep trouble for accidentally misprescribing opioids to the wrong people. As a result, some doctors have been refusing to prescribe pain medications to patients who truly need them. One study found 40% of doctors refused to take on patients with chronic pain issues because they required opioid treatment.

Some patients can’t get relief from excruciating chronic pain because good doctors are afraid of being prosecuted for opioid prescribing. But there is no reason for doctors to be afraid, and the U.S. Supreme Court now has an opportunity to show doctors they can practice medicine without fear of prosecution.

On March 1, the Supreme Court will hear appeals from some pill mill doctors convicted of illegally selling pills under the Controlled Substances Act. This is the same law used to charge dealers who peddle cocaine or heroin on street corners. These doctors might have their convictions reversed, but not because prosecutors had unfairly targeted physicians engaged in innocent activity.

Prosecutors do not charge doctors who accidentally sold opioids to deceptive patients. Prosecutors charge doctors who were engaged in selling drugs for cash. And it is hard for prosecutors to win even those cases.

For instance, the Supreme Court will consider the case of Dr. Xiulu Ruan and his medical partner, who wrote almost 67,000 prescriptions for painkillers in a single year — the equivalent of a script every four minutes. Many of those prescriptions were written for pain drugs so powerful that they were only approved for cancer patients. But the drugs were prescribed to people who never had cancer.

Ruan also was convicted of taking kickbacks from a drug manufacturer in exchange for writing prescriptions for fentanyl, a highly dangerous opioid. The scheme was so elaborate that Ruan and his partner even opened their own pharmacy so they could cut out the middleman and keep even more cash. The doctors profited handsomely from their scheme, acquiring 23 luxury cars, including multiple Ferraris, Lamborghinis and Bentleys, which eventually were seized by the government.

The legal question in Ruan’s case is complicated and important: whether the lower court correctly instructed the jury about the mental state a doctor must have to be convicted of illegally prescribing drugs. Regardless of how the court decides the technical legal question, it should be careful to signal that there has not been a rash of prosecutions against doctors who have been merely negligent and mistakenly prescribed drugs to someone who abused them. Doctors need to understand that it is very difficult for prosecutors to charge physicians for overprescribing.

To show that a doctor is illegally selling drugs, prosecutors must comb through reams of medical records to document that there was no medical basis for the doctor to prescribe the drugs. Prosecutors often have to hire medical experts to explain that there was nothing in the patient’s file to justify the powerful opioids. And to prove a doctor is not really examining patients (and instead just selling pills) prosecutors often have to send in undercover agents with cash in hand to pose as drug buyers. All of this is hard to do.

Prosecutors therefore are not casting a dragnet that captures innocent physicians. Instead, many doctors who peddled dangerous opioids have escaped justice because prosecutors lack the time and resources to build a criminal case.

And even when prosecutors have enough evidence to charge a doctor, they still must convince a jury that a doctor — the person in a white coat who has spent their life helping people — was in fact up to no good. A Gallup study found doctors have one of the highest ratings for honesty and ethics of any profession. Overcoming society’s intense respect for doctors is no easy task.

The Supreme Court ultimately might have to reverse the convictions of some pill mill doctors because of flawed jury instructions. But the court should take this opportunity to show good doctors that prosecutors have not run amok. Prosecutors have limited resources, and they use them to fight tough legal battles to convict the pill mill doctors who fueled the opioid crisis.

Law-abiding physicians — even those who might accidentally misprescribe opioids on occasion — should sleep easy at night that prosecutors are not lurking around the corner for them. These good doctors then should feel comfortable prescribing opioids to chronic pain patients who truly need them.

Adam M. Gershowitz is associate dean for academic affairs, and the Hugh and Nolie Haynes Professor of Law at William & Mary Law School. Contact him at: amgershowitz@wm.edu

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