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November 5, 2021
SCOTUS grants cert on two (consolidated) cases to consider physician criminal liability for unlawfully dispensing prescription drugs
The Supreme Court this afternoon issued this new short order list that grants certiorari in a few new cases, including a (consolidated) pair of criminal matters involving whether and when doctors can be criminal liable for unlawfully dispensing prescription drugs. The two cases are Ruan v. US, No. 20-1410, and Kahn v. US, No. 21-5261, and here is the question presented in the first of these:
Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.
November 5, 2021 at 06:20 PM | Permalink
Comments
Also took a Bivens case but turned down an offer to decide to chuck the whole thing out.
Posted by: Joe | Nov 6, 2021 1:10:26 PM
Generally, the Feds do not go after physicians over their narcotic prescribing practices unless they are way over the line, not even close to accepted normal medical practices. But occasionally, the Feds prosecute a well-intentioned physician who is just being a liberal physician, and not acting like a drug dealer. I learned a lot about this area of law after spending 5 years litigating the Habeas Corpus Motion (2255) of my friend Ali Sawaf, who had been a urologist in the U.S. since the 1960s. We eventually secured his release from prison, based upon ineffective assistance of counsel at plea bargaining. See, Ali H. Sawaf v. United States, 570 F. App'x. 544 (6th Cir. 2014) (unpublished). Sawaf ended up serving 13.5 years of a 20 year sentence, in part because it took 5 years to litigate his habeas corpus motion. Defense counsel had told him to turn down a 41 month plea offer, because he thought he could get him acquitted based upon entrapment. His young defense lawyer never gave Dr. Sawaf any estimate of the length of sentence he was facing if he went to trial and was convicted on all counts. Dr. Sawaf was convicted at trial on most counts and received a statutory maximum sentence of 20 years [section 841(b)(1)(C)]. Sawaf's trial was the first Federal criminal trial for the District Judge [Karen Caldwell] after she was confirmed by the Senate. It was also the first Federal criminal trial for the AUSA and for Sawaf's defense lawyer (who was only 3 years out of law school). Judge Caldwell sat on Sawaf's 2255 Motion for 3.5 years before denying it. She even waited more than 7 months after his evidentiary hearing before denying it. It took 1.5 years to get the Sixth Circuit to reverse Judge Caldwell and direct her to grant habeas corpus relief to Dr. Sawaf. Judge Caldwell refused to grant Sawaf a bond, even though it was clear he would be released from prison. She kept him incarcerated from June 2014 until September 2014, when Sawaf was re-sentenced to "time served".
A huge problem with Sawaf's case is that the Government did not present any evidence of drug quantity at sentencing or re-sentencing. Rather, the AUSA got Judge Caldwell to extrapolate from the trial testimony of the Government's expert witness physician, who had reviewed only a sample (5%) of Dr. Sawaf's more than 2,000 patient files. He testified at trial only about the narcotics prescriptions written in about 100 patient files. At sentencing, Judge Caldwell extrapolated from the prescriptions written in those 100 files, to including every narcotic pills prescribed for more than 2,000 patients in every file. No physician reviewed or gave an expert opinion about the narcotics prescriptions written for more 1,900 patients, but all of those pills were used by Judge Caldwell at sentencing to give Dr. Sawaf a 20-year statutory maximum sentence. Dr. Sawaf's young defense lawyer did not object at the Sentencing Hearing, and he did not raise the issue in Dr. Sawaf's direct appeal, which he also handled. So, if the U.S. Supreme Court decides these two new cases "the right way", it may be possible for Dr. Sawaf to later file a Petition for a Writ of Error Coram Nobis, to get his convictions vacated and set aside. Now, the 80-year old Dr. Sawaf can just wait.
Posted by: Jim Gormley | Nov 7, 2021 10:04:26 AM
I wonder how many states have laws similar to the federal one that creates an exception to the general rule that it is not unlawful to prescribe a Schedule II, III, IV, or V controlled substance. My state appears to incorporate the federal rule by reference but it is unclear if there is a criminal penalty for improperly prescribing a controlled substance.
Posted by: tmm | Nov 8, 2021 10:05:15 AM
tmm -- My friend Ali Sawaf, M.D. was prosecuted under both Kentucky state law and under Federal law, but his state sentence ran concurrently with his Federal sentence. He was first indicted and prosecuted under Kentucky state law, but then the Feds picked up the case and also indicted Sawaf under Federal law.
Posted by: Jim Gormley | Nov 8, 2021 9:22:51 PM
