Criminalizing medicine

Are some physicians being convicted and sentenced for “legal” prescriptions?

I say “yes,” and I have first hand experience defending physicians on appeal from such convictions and sentences. Perhaps the best example I have to offer is the case involving Drs. David and Randall Chube, two Gary, Indiana, physicians that I represented on appeal to Seventh Circuit Court of Appeals. See US v. Chube II, 538 F3d 693 (7th Cir. 2008).

DEA attorneys confuse the legitimate medical purpose rule

The problem occurs when the criminal conviction standard and civil standard of care – two very distinct legal standards – are confused, substituted, and/or conflated by DEA investigators, DEA attorneys, federal prosecutors, the government’s expert witnesses, and the PSR writers. In my opinion, this legal error – i.e., criminalizing medicine – occurs too often, during key phases the criminal proceeding, which include the:

  • DEA investigation (leading to more counts in the indictment);
  • Federal prosecution (leading to more convictions at trial); and
  • Federal sentencing (leading to longer prison sentences).

In my experience, this legal error occurs when the civil and criminal standards are conflated through the misapplication of the rule against prescribing without a “legitimate medical purpose,” a subject that is discussed in more detail on the criminal violations page of this website, and numerous other pages as well.

Medical malpractice is neither criminal conduct nor relevant conduct

This point is key: A violation of the civil standard of care (usually called malpractice, or professional negligence) is, without more, not enough to prove a prescription drug crime, or the “relevant conduct” necessary to lengthen a prison sentence. The reason is simply. Malpractice alone, even when prescribing controlled substances, is not a crime, and malpractice alone is not enough to support a criminal conviction, or a finding of relevant conduct necessary to lengthen a prison sentence. Unfortunately for physicians, however, when the criminal conviction standard is conflated with the civil standard of care, the criminal conviction standard is lowered toward the malpractice standard, making multiple criminal convictions easier to win, and the relevant conduct necessary to lengthen a prison sentence, easier to find. Protect yourself – do not let this happen to you.

The legitimate medical purpose standard as applied in case of U.S. v. Chube II, 538 F3d 693 (7th Cir. 2008)

At the time of sentencing in the Chubes’ case, the federal prosecutor and the PSR writer seemingly counted every prescription written by the Chubes as “relevant conduct,” without first reviewing each prescription to determine whether “drug diversion” – which is the crime – had in fact occurred. Drug diversion includes unlawful prescribing, unlawful dispensing, or drug dealing, i.e,. it is criminal conduct. Under the federal sentencing guidelines, relevant conduct, which is essentially other criminal conduct, is applied at the time of sentencing to increase the length of a prison sentence. In the Chubes’ case, Dr. Randall Chube’s sentence was increased to five years and Dr. David Chube’s sentence was increased to fifteen years. In the Chubes’ case, however, it wasn’t relevant conduct because it wasn’t criminal conduct. Another way to look at it is that the DEA “criminalized” medical error. Criminalization occurs when there is an unchecked expansion of the law by over-aggressive law enforcement.

On appeal, the Seventh Circuit Court of Appeals vacated both doctors’ prison sentences and “remanded” the case back down to the District Court for re-sentencing. The Seventh Court of Appeals explained that the District Court relied upon insufficient evidence to prove that the relevant conduct was in fact criminal conduct. See US v. Chube II, 538 F3d 693 (7th Cir. 2008). Shortly thereafter, the trial court released both physicians from prison pending re-sentencing, and both physicians served substantially shorter sentences once relevant conduct was correctly understood and applied.