Posted on 03/02/2022 5:34:31 AM PST by Kaslin
Xiulu Ruan, a board-certified Alabama pain specialist, was sentenced to 21 years in federal prison for prescribing opioid analgesics "outside the usual course of professional medical practice." According to the appeals court that upheld his conviction, it did not matter whether he sincerely believed he was doing what a physician is supposed to do.
That ruling, which is the focus of a case the Supreme Court heard on Tuesday, conflates negligence with criminal liability, invites the Drug Enforcement Administration to usurp state medical regulators and encourages prosecutions that have a chilling effect on pain treatment. If it is allowed to stand, doctors who already face intense pressure to curtail opioid prescriptions will be even more inclined to elevate drug control above pain control.
Ruan's trial featured the usual battle of experts. Defense witnesses portrayed him as a conscientious physician doing his best to serve patients in dire need, while prosecution witnesses portrayed him as careless and blind to "red flags" indicating abuse or diversion of the drugs he prescribed.
Some of this disagreement stemmed from dueling interpretations of Ruan's practices and lapses. Some of it stemmed from ongoing debates on issues such as the risks and benefits of long-term opioid therapy for chronic pain and, more generally, how to balance patients' needs against the government's demand that physicians prevent misuse of pain medication.
That demand puts doctors in a difficult position since pain cannot be objectively verified. If they trust their patients, some people will take advantage of that trust; if they reflexively treat their patients with suspicion, some people will suffer needlessly from pain that could have been relieved safely and effectively.
The threat of regulatory sanctions and malpractice lawsuits already forces clinicians to weigh the risk to their licenses and livelihoods if they make questionable prescribing decisions. The threat of criminal prosecution ups the ante because it means that doctors also can lose their liberty if they make decisions that the DEA, a law enforcement agency with no medical expertise, views as medically inappropriate.
Criminal penalties traditionally are reserved for people who knowingly break the law. But the U.S. Court of Appeals for the 11th Circuit has held that a physician's "good faith belief that he dispensed a controlled substance in the usual course of his professional practice is irrelevant" to the question of whether he violated the Controlled Substances Act.
Based on that reading of the law, the 11th Circuit rejected Ruan's argument that he was entitled to a jury instruction precluding a guilty verdict if the evidence indicated that he honestly thought his prescriptions were "for a legitimate medical purpose" and that he was "acting in the usual course of his professional practice," as required by CSA regulations. As the appeals court saw it, Ruan could be sent to prison for decades even if he unintentionally fell short of those ambiguous standards.
Doctors defending themselves against CSA charges in other circuits face obstacles that are nearly as daunting. In a case that was consolidated with Ruan's, the trial court told the jury that good faith "connotes an attempt to act in accordance with what a reasonable physician should believe to be proper medical practice."
While that standard might make sense in a malpractice lawsuit, it falls short of the culpability that is usually required for a criminal conviction. Worse, when the U.S. Court of Appeals for the 10th Circuit considered the same case, it held that good faith, however defined, does not matter in deciding whether a prescription was written in "the usual course of professional practice," which must be determined "objectively."
As two health law professors note in a brief supporting Ruan's appeal, uncertainty about which practices may provoke federal prosecution hurts patients as well as physicians. It provides yet another reason to turn away or abandon patients who already are suffering from the indiscriminate crackdown on pain medication, sacrificing their welfare on the altar of the war on drugs.
IMO drug abuse is ultimately the responsibility of those who abuse them. IIRC Nancy Reagan put it very well..."just don't do it".
I don’t know much about this specific case. But, I am weary of prosecuting physicians for operating “outside the usual course of professional medical practice” recently. We have seen how politically influenced “professional medical practice” has become.
I lost a dear family member to this - the government, not the drugs.
Remember when they used to ask you to rate your pain, 1 to 10? It used to mean something.
My family member was prescribed oxycontin for ten years. They were careful with the medication and it gave them years of pain-free life where they were able to continue to work.
When the Obama administration, on the way out in late 2015, issued an edict that threatened physicians with legal action for “over prescribing”, my family member’s meds got cut by a third. They tried substitutes, but there is none.
The awful reality of telling an elderly person they cannot escape their pain because the government says they have to hurt... fellow FReepers, try explaining that to someone you love, who has always trusted doctors.
The fix is Easy:
NO OPIATES FOR ANY PUBLIC EMPLOYEE, EVER!
After reading about the trial and what these two physicians were doing and of which they were found guilty, I’d say that was a rather light sentence. It’s amazing they got away with it for so long ! Doctors such as this deserve prosecution !
Thanks for the update.
I am concerned that the “operating outside professional medical practice” argument may be used against doctors that provided “traditional” therapeutics and antiparasitics to treat COVID patients.
The question is whether mens rea or intent will be applied in these cases as it it with all other criminal cases. There are certainly differing opinions as to the use of opioids in chronic pain. In all these cases, the government has their expert and so does the defense. The experts are credentialed and have clinical experience in the area and are then qualified by the judge to give expert testimony in the case.
The question isn’t whether the doctor personally felt that he was practicing to the appropriate standard. It’s whether he was practicing to a prevailing standard or common standard such that it was in the usual course of practice and the prescription was for a legitimate purpose.
This isn’t the case where’s there’s one single standard of care or approach. It’s not like doctors can just follow a simple standard like following a speed limit.
There was also some confusion as to the use of “knowingly” in the CSA statute which made it difficult to interpret. If that’s the case, any interpretation should favor the defendant according to vagueness doctrine.
Seriously, do you believe all the BS that the DOJ can dig up on a target. Didn’t you know that withholding exculpatory evidence, entrapment, intimidating witnesses for testimony , manufacturing evidence is commonplace?
If you think that Ruan was guilty based on DOJ/DEA investigations, you also probably believe that there was a plot to kidnap Whitmer and J6 was a coup attempt by domestic terrorists. The government has conviction rates of 95% or more. It’s not because they’re that good. It’s because they have all the resources in the world and if they want to target you, they can put you in prison without too much effort.
You have to be naive if you actually accept DOJ accusations at face value.
I think people are different. My husband was given pain meds after extraction. ..and never needed them. But you’re right, the “rules” seem ridiculous.
Yes...
The government has no right...
NO RIGHT...
To get between a doctor and his patient...
May anyone who thinks so suffer excruciating pain, and be told relief is not available.
Governments, at least ours, does not have Rights.’
# You have to be naive if you actually accept DOJ accusations at face value.
At this point, I figure any testimony from the fbi, dea, batf, or any of these other out of control agencies is little better, and probably considerably worse than hearsay.
As a prescribing physician (urgent care, family practice) people in pain always get what is appropriate. Acute pain can be handled by people like me (injury, renal stone) but long-term pain care should be handled by a pain specialist.
After reading the report of the trial, and knowing first hand how some of these pain clinics operate at least in my state, and how the pharmaceutical companies reimburse physicians for prescribing their products, YES, in this case I do believe they got this one correct.
Do you know anything about the government’s expert?
Do you know or understand the varying positions of experts on opioid prescribing for chronic pain patients?
What do you know about QLarant AKA Bamboo? Do you know about the use of unproven algorithmic data used to target and indict prescribers?
What is your understanding of intent in criminal cases?
What are your thoughts on legal standards for a criminal conviction versus negligence in a civil tort case?
No Grumpy, I am not an attorney, nor did I stay at Holiday Inn last night, but having been in the prescribing business with more than a little experience in Pain Control as well as General Medicine, and having personal experience with pharmaceutical companies “deals” with preferred prescribers amounting to significant kick-backs, I know a scam pain clinic when I see one. Apparently the courts agreed in this case but conspiracy theorists will continue to vilify the prosecutorial system and judicial system in even the most egregious cases.
I assume you and I will just continue to agree to disagree while the defendants spend their years behind bars without access to the Lamborghinis, Mansions, Bentleys, and all other ill-gotten gains while arranging for the court-ordered restitution.
Spit....
The feds once again have taken control of something they have no business meddling in...
Years ago, my dentist pulled 3 of my wisdom teeth.
He gave me a prescription for pain meds.
The pharmacy could not fill it because the dentist had reached his limit for the month.
I had to get a lesser pain med.
If you have ever had teeth pulled, the pain is excruciating.
Screw the DEA, and the war on drugs.
The state does not limit a physicians ability to prescribe pain meds / month normal. The only answer I can think of here is either: The pharmacy is lying and did not want to dispense for whatever reason. Or the doctor who prescribed it is under some type of State restriction due to a history of prescribing opiates inappropriately, possible for self or family/ friend use without a medical indication. Would have to know the specifics regarding this !
Wow. A bonafide DOJ shill. The problem here is the drug trafficking charges. These charges are based on criminalizing those that espouse the use of opioids in chronic pain patients. Even if you believe that opioid prescribing is bad practice, it’s not criminal conduct and remedies such as license sanctioning or revocation are more than sufficient if that’s an issue.
Do you even know about the mis classification of illicit opioid deaths as prescription opioid deaths by CDC and various states? That’s how prescription opioids have been demonized. That’s how the government has obtained huge settlements against opioid manufacturers. The money is going right back into state general funds and not to the purported victims or treatment facilities for OUD.
What do you know about the use of opioids in chronic pain?
This crap about nice cars is really old and bogus.
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