Overview

In an attempt to address the U.S. opioid epidemic, The United States Department of Justice, through its DEA component, has effectively declared a war against Pain Management Physicians as well as other healthcare professionals over the past 20 years.

The War Against Doctors blog provides an inside look at the DOJ’s prosecution of healthcare professionals and focuses on recent developments in federal cases against primarily physicians and pharmacists.

U.S. Supreme Court Rules on Doctors Illegal Distribution of Schedule II Narcotics under the Controlled Substances Act

By Solomon Wisenberg – We have posted several times over the past year about the consolidated cases of Ruan v. United States and Kahn v. United States, pending at the U.S. Supreme Court this term. The cases involved the level of scienter required to convict doctors of illegal distribution of Schedule II Narcotics under the Controlled Substances Act. The opinion in Ruan v. U.S. and Kahn v. U.S. is now out and it is even better than most of us thought it would be. “After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so.” The ruling was 9-0 on the final outcome, but 6-3 on the majority’s reasoning. Justice Alito, joined  by Justice Thomas and, for the most part, Justice Barrett, concurred in the result only. They did not join the majority’s holding that, once the defendant meets the burden of production, the burden of proof beyond a reasonable doubt shifts back to the government. All nine Justices agreed that the jury instructions in the two trials were defective because they injected objective reasonableness requirements into their good faith instructions. Many issues remain to be resolved in these Pain Doctor cases, but the victory here is truly sweeping. Doctors have been convicted nationwide over the past several years under what amounts, in many circuits, to a civil malpractice/negligence

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XIULU RUAN, PETITIONER v. UNITED STATES OF AMERICA

Justice Breyer delivered the opinion of the Court. A provision of the Controlled Substances Act, codified at 21 U. S. C. §841, makes it a federal crime, “[e]xcept as authorized[,] . . . for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled substance,” such as opioids. 84Stat. 1260, 21 U. S. C. §841(a) (emphasis added). Registered doctors may prescribe these substances to their patients. But, as provided by regulation, a prescription is only authorized when a doctor issues it “for a legitimate medical purpose . . . acting in the usual course of his professional practice.” 21 CFR §1306.04(a) (2021). In each of these two consolidated cases, a doctor was convicted under §841 for dispensing controlled substances not “as authorized.” The question before us concerns the state of mind that the Government must prove to convict these doctors of violating the statute. We hold that the statute’s “knowingly or intentionally” mens rea applies to authorization. After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so. I The question we face concerns §841’s exception from the general prohibition on dispensing controlled substances contained in the phrase “[e]xcept as authorized.” In particular, the question concerns the defendant’s state of mind. To prove that a doctor’s dispensation of drugs via prescription falls within the statute’s prohibition and outside the authorization exception, is it

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El Paso Doctor Indicted for Distributing Controlled Substances

Department of Justice U.S. Attorney’s Office Western District of Texas (read original press release) EL PASO – Today federal authorities arrested 60-year-old Dr. Brian James August of El Paso for allegedly committing health care fraud and distributing controlled substances that resulted in the overdose deaths of five individuals. A 15-count federal grand jury indictment, unsealed upon his arrest, charges Dr. August with five counts of distribution of a controlled substance resulting in death or serious bodily injury, five counts of distribution of a controlled substance and five counts of health care fraud resulting in death.  Upon conviction, Dr. August faces 20 years to life in federal prison for the drug charges resulting in death; up to 20 years in federal prison for each of the remaining drug charges; and up to life in federal prison for each of the health care fraud charges. The indictment alleges that between December 2012 and March 2018, Dr. August, who practiced Physical Medicine and Rehabilitation aka “physiatry,” prescribed and dispensed controlled substances, including methadone, fentanyl, hydromorphone, morphine, hydrocodone and oxycodone, outside the usual course of medical practice and without legitimate medical purpose, resulting in the deaths of five victims.  Dr. August is also alleged to have committed health care fraud by billing for services he did not perform. U.S. Attorney Ashley C. Hoff, Special Agent in Charge Kyle Williamson of the Drug Enforcement Administration’s (DEA) El Paso Field Office and Acting Special Agent in Charge Jeffrey Coburn of the FBI’s El Paso Division made

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