If a doctor intentionally accepted money in order to prescribe otherwise illegal drugs that were not medically necessary, he or she might be in serious trouble with the law. But what if the doctor genuinely thought the drugs were medically necessary? And what if they money came in the form of insurance reimbursements?
Doctors are not free to intentionally sell medically unnecessary drugs, but what should the standard be? Should the government prosecute any doctor whose prescriptions are deemed medically unnecessary by an outside expert? Or should the doctor’s own belief in the propriety of the prescription be a defense?
That question is currently before the U.S. Supreme Court. The fate of many doctors and pain patients could hang in the balance.
The federal government has been attempting to prosecute doctors it alleges are merely drug dealers in white coats. Usually, the doctors targeted for prosecution specialize in pain management and therefore prescribe large numbers of opioid drugs. The government sometimes refers to these pain management practices as “pill mills” – places where opioid pills are handed out routinely to many patients, allegedly outside the bounds of good medical practice.
Opioid drugs, such as OxyContin, Vicodin and fentanyl, are only legal when prescribed by a physician. Otherwise, they are controlled substances that are prohibited by the federal Controlled Substances Act (CSA).
Specifically, the relevant part of the CSA reads:
“Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally…to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”
What is “authorized by this subchapter” is “a valid prescription that is issued for a legitimate medical purpose in the usual course of professional practice that is based upon a qualifying medical relationship by a practitioner registered by the Attorney General.”
The question before the court is how judges should decide whether a prescription was “issued for a legitimate medical purpose in the usual course of professional practice.”
Does the intent of the doctor matter?
The federal government argued that the question of whether a prescription was valid should be looked at objectively. Did the doctors make an “honest effort” to comply with the relevant professional norms? The two doctors involved in this consolidated case argue instead that the question should be subjective. Did the doctors subjectively believe that they were writing the prescriptions for legitimate medical purposes?
The high court heard oral arguments on March 1, and observers could not tell from the justices’ questions which standard was likely to prevail.
Pain specialist or drug dealer? Who decides?
The government’s lawyer insisted that federal law enforcement is not targeting doctors who make “close calls” on whether to prescribe to a particular patient. It will only go after doctors who are essentially dealing drugs. Can physicians trust the government’s judgment, or will some innocent doctors get caught up in the dragnet?
If doctors fear that their medical decisions will be scrutinized whenever they prescribe opioids, they may simply refuse to prescribe them out of fear. That could leave people who suffer from chronic, debilitating pain without this treatment option.