Tag: prescribing without a legitimate medical purpose

Ten year anniversary of U.S. Supreme Court opinion against DEA in favor of physicians and pharmacists

This year marks ten years since the United States Supreme Court issued its opinion in the case of Gonzales v. Oregon (406 KB), decided January 17, 2006. In this case, the United States Supreme Court affirmed the Ninth Circuit Court of Appeals’ opinion (263 KB), which had earlier affirmed the federal District Court’s opinion (1.78 MB) enjoining former United States Attorney General John Ashcroft from prosecuting Oregon physicians and pharmacists.

Against the DEA, healthcare defense attorney seeks injunction

Normally, as a healthcare defense attorney, someone else, for example, a licensing Board or the Drug Enforcement Administration (DEA), initiates the litigation. In this case, however, in order to protect physicians and pharmacists throughout the State of Oregon, it was necessary that I become the plaintiffs’ attorney. I sued former Attorney General John Ashcroft and the DEA in federal District Court on behalf of a physician and a pharmacist who were threatened with federal criminal investigations, prosecutions, fines, and imprisonment. See Complaint (1.24 MB).

Important victory for physicians and pharmacists everywhere

The opinion by the United States Supreme Court is an important victory for physicians, pharmacists, and patients everywhere, because it establishes the precedent that the United States Attorney General may not define the scope of legitimate medical practice, and that the States, not the federal government, regulate the practice of medicine. Justice Kennedy, writing for the majority of the Court, concluded his 28 page opinion writing:

“The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it. Gonzales v. Oregon (406 KB)(Kennedy, J.)”

This victory stands today – the injunction against the DEA is still in effect! This case is discussed in more detail on the appellate practice page of this website.

Against the DEA, lawyers mount vastly different defenses

Part of my work requires that I review trial court records in order to prepare and file briefs on appeal. Consequently, I see the complete record, from beginning to end, prepared by different lawyers. One practice area that keeps me on my toes is defending physicians, pharmacists, and prescribing nurses from prescription drug charges by the DEA. Lawyers defending such cases can take vastly different approaches to their work. Some do a great deal of work to prepare, and do that work well in advance of trial. Others, not so much, saving preparations until close to trial, which can be unnerving to physicians, pharmacists and prescribing nurses, demanding professionals in their own right.

DEA lawyers present uniform prosecutions across the country

My experience includes directly defending or assisting physicians, pharmacists, and prescribing nurses in cases arising out of the Third, Fourth, Seventh, and Ninth Circuits and 13 states, including Indiana, South Carolina, Arizona, Oregon, Virginia, Georgia, Pennsylvania, Florida, Hawaii, Texas, Connecticut, California and Michigan. With this broad experience, I have seen first hand that the DEA lawyers take a similar if not uniform approach across the country when investigating and prosecuting physicians, pharmacists, and prescribing nurses, which should come as no surprise, since the DEA’s work is driven from the top down. I have also seen first hand that defense attorneys are far less uniform in their approach to their work, and the quality of each defense is dependent upon the individual firm and lawyer(s) responsible for preparing and delivering defense.

Working against the DEA, lawyer’s experience reveals common mistake

As a part of the work summarized above, I represented the physician and pharmacist before the United States Supreme Court in the case of Gonzales v. Oregon, 546 U.S. 243, 126 S. Ct. 904, 163 L. Ed. 2d 748 (2006). I am also the lawyer that obtained the release from prison of doctors David and Randall Chube, on appeal to Seventh Circuit Court of Appeals, in the case of US v. Chube II, 538 F3d 693 (7th Cir. 2008). Both these cases are discussed in detail elsewhere on this website, and that effort will not be repeated here, except one point bears repeating: If a case is not well-defended, the DEA will criminalize some aspects of the practice of medicine by confusing the civil standard of care with the criminal conviction standard. Don’t let this happen to you.

An adequate defense can be complicated and expensive

Drug diversion cases (i.e., prescribing or dispensing “without a legitimate medical purpose”) are complicated cases to defend, with each case presenting the intersection between law, medicine and, sometimes, politics, with the occasional involvement of the media. When mounting an adequate defense against the DEA, lawyers face divergent tasks, and it is difficult for one lawyer to do it all. This is not an uncommon problem in litigation generally. When I was a younger attorney, recruiting lawyers to help defend physicians in a small southern medical clinic, one senior attorney commented to me that “if we had four lawyers and $100,000 we could do something with this case,” and his comment is often spot on. The point I would stress to any physician, pharmacist, or prescribing nurse defending against prescription drug charges, is to ensure that your defense team is complete, and that your defense is prepared well in advance of trial.