Days after the Supreme Court overturned Roe v. Wade, it made a much less publicized ruling on prescription opioids—one that was far more welcome in the medical community. In a rare 9–0 decision in Ruan v. United States, the court ruled in favor of several doctors who were criminally convicted of acting as drug dealers by overprescribing pain medications.
The decision gives physicians charged with illegally prescribing opioids a fighting chance against law enforcement by requiring that prosecutors prove that they had criminal intent, rather than simply having to show that their prescribing did not conform to standardized guidelines.
Consequently, by making the law clearer, the decision may also give people with pain or addiction better odds of receiving appropriate medical care, especially if they have complex cases that may require unusual dosing.
In the face of a decades-long overdose crisis that continues to escalate, doctors have become terrified that authorities will decide that their practice is out of line and throw them in prison for drug trafficking. Hundreds of doctors have been prosecuted—and thousands more simply decided to stop prescribing opioids, even when they thought the benefits would outweigh the risks.
Summing up the case in his concurrent opinion, Justice Samuel Alito wrote, “A doctor who makes negligent or even reckless mistakes in prescribing drugs is still ‘acting as a doctor’ — he or she is simply acting as a bad doctor. The same cannot be said, however, when a doctor knowingly or purposefully issues a prescription to facilitate ‘addiction and recreational abuse.’”
In other words, the remedy for bad doctoring exists in civil malpractice law, not criminal prosecution, which should be reserved for intentional drug dealing.
Lower courts had split on a key question in these criminal cases: should the government be required to prove that accused doctors are aware that they have crossed the line from medicine into drug dealing—or should prosecutors only have to demonstrate that their prescribing so deviated from the standard of care for pain management that it was obviously criminal?
In the Ruan case, for example, prosecutors alleged that Dr. Ruan began prescribing large amounts of a particular brand of fentanyl, after investing $1.6 million in the company that made it. To the government, this alone proved that he was a drug dealer, but the Court took his case because his lawyers had argued that the jury instructions did not allow him to properly defend himself as having prescribed appropriately. (The Court didn’t overturn his conviction, but sent it back to the appellate level so that the lower court could determine whether he should have a new trial based on its ruling.)
Federal law in this area is vague: it says that a prescription is legal if it is written “for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” But it doesn’t define what a legitimate medical purpose is.
Not surprisingly, when the Centers for Disease Control and Prevention published opioid prescribing guidelines in 2016, they were adopted as hard mandates. Afraid that standing out would paint a target on their backs, doctors have reduced or eliminated opioid doses used for chronic pain to conform to the guidelines—and have even prescribed lower doses to end-of-life patients because of fears of prosecution.
Now, thousands of people are being left to suffer needlessly. Prescribing rates have dropped below those of the mid-1990s, before pharmaceutical marketing drove a massive increase. Between 2013 and 2017, the number of opioid prescriptions for cancer patients, who were explicitly exempted from the CDC guidelines, fell 21 percent, with the drop escalating after the guidelines were published. Even the CDC—including the authors of its guidelines—says that doctors have misinterpreted the guidance and done harm; the authors are currently updating the guidelines. Meanwhile, overdose deaths continue to skyrocket.
The chilling effect on patient care has been stark. Reports of suicides by patients who have had their opioid doses reduced or eliminated are so widespread that researchers are conducting a study about what led to their deaths. At least nine studies now show that patients who are forcibly tapered have higher rates of both suicide and overdose; in other words, in an attempt to reduce risk to these patients from prescribed opioids, we may be killing some of them.
Health care workers who are afraid that patients’ pleas for pain relief will result in legal trouble for them also tend to become callous and cruel. Earlier this year, former nurse Bill Kinkle says HE was dumped out of a wheelchair onto a hospital floor because staff assumed that since he had wounds linked to IV drug use, he must be faking his inability to move to get sympathy so he could get drugs. He says that when he finally got medical attention, the neurosurgeon told him that any further delay in care would have caused irreversible paralysis from the neck down.
One Harvard University addiction doctor reported being turned away from an E.R. within its medical system where he was asking for treatment for severe sciatica. The E.R. initially labeled him a drug seeker before staff recognized him and realized he needed care. If he hadn’t had his credentials, the situation might have turned out much differently.
As a journalist who covers this area regularly, I frequently hear stories from families of dying people who are not being given appropriate relief and from people who, despite other approaches failing, cannot get opioids for chronic or postsurgical pain, even while in the hospital. But now that the Court has decided that doctors have the right to defend themselves as practicing in good faith, the pendulum may at least start to swing back to a more humane form of pain care.
The decision is already starting to have an effect on physician prosecutions. The U.S. Department of Justice has dropped at least one case involving opioid prescriptions. And an attorney for one of the defendants associated with the Ruan decision, Ronald Chapman, said that in the case of David Lewis, who he was also representing, the judge had to adjust jury instructions just as the decision was about to be read. The next day, the jury returned a complete acquittal of all of the doctors on all counts.
The decision could also affect other cases where the government has criminalized the prescription of opioids, including those used in addiction treatment like buprenorphine and methadone. Research shows that expanding access to these medications is one of the most effective ways to reduce overdose deaths—but what looks like lowering barriers to care from a public health perspective can appear to be drug dealing by doctors to police. With prosecutors required to prove criminal intent, doctors who make getting addiction medications easier will face fewer legal threats.
Ruan, however, will not stop the prosecution of physicians who actually become drug dealers and sell specific substances for specific amounts of money or trade prescription drugs for sex; the Court rejected the government’s claims that having to prove criminal intent will make these cases impossible.
Unfortunately, while it is easy to scare doctors into complying with what they think is the law, it’s a lot harder to liberate them from those fears. Let’s hope that the Ruan case will start to make addiction and pain medicine far more friendly to both doctors and patients.
This is an opinion and analysis article, and the views expressed by the author or authors are not necessarily those of Scientific American.