Breakdown of the Government’s Brief in Ruan v. United States

I’ve been waiting about 10 years to see how the government attones for the circuit split in physician opiate prescribing cases - and today’s the day.

I have written extensively on the important pending Supreme Court case, Ruan v. United States. If you haven’t read the previous articles and gained an understanding of the issues before the court, stop and read this and this.

Now that you’ve got some background on the complex but important issues before the court, lets discuss the Government’s brief which was filed today and can be accessed here.

Remember, the critical impasse between the two sides is that the Government believes that a physician’s “subjective” good faith is irrelevant in determining whether he can be convicted of unlawfully prescribing a drug to a patient. The Defendant’s position, and the position of a large number of amicus briefs, is that a physician’s subjective belief that she was prescribing in the furtherance of medical practice is an important determination for the court. If the government wins, physicians could be convicted if they fall outside “objectively” established guidelines for prescribing. If the defense wins, physicians can avail themselves of the defense that even though conduct falls outside of objective guidelines - they were engaged in the good faith treatment of a patient.

As you can see, a decision in either direction has drastic consequences for pain patients and physicians.

The Government Threads the Needle Between “Subjective” and “Objective Good Faith”

Let’s get to the Government’s brief to understand how they thread the needle of the existing Supreme Court precedent, United States v. Moore, and its attempt to hold physician’s to an objective standard. And this sentence from the brief sums it up pretty succintly:

“The government may rebut such a claim by a DEA registered physician by proving beyond a reasonable doubt that he did not even make an objectively reasonable attempt to ascertain and act within the bounds of professional medicine.”

Ruan v. United States Government’s Brief

We can see the government waffle slightly, refusing to take the bright line approach that deviation from an “accepted standard of practice” amounts to criminal conduct. Instead, the Government argues that a physician must show that he attempted to engage in an objectively reasonable practice - but does not go so far as to require that they actually do so.

We’re reading the tea leaves here but it appears the government knows that its not on solid footing if it chooses to hold physicians strictly to an “objective standard of care”. Perhaps it knows that there isn’t really one in existence like the-ahem- hotly contested 2016 CDC Guidelines. Perhaps it knows that the current composition of the court is unlikely to expand federal authority into dictating and regulating the appropriate practice of medicine. Perhaps it knows - deep down it its bureaucratic little belly - that the government is not properly poised to make medical judgments impacting the rights of millions of patients - but lets not get ahead of ourselves here.

Instead of taking on the responsibility of convincing nine justices that an “objective” standard of care is relevant here - the Government expertly slithers around this argument by couching its argument in the “effort” shown by a physician to attempt to engage in the practice of medicine. Well done. Now it can state that Dr. Ruan and Khan are guilty because they made no effort to comply with general standards of practice. A very effective alamo position that might gain some points with the court.

In support of its theory that some “objective” standard of medicine applies, the government cites to the old hand authoritative text of…you guessed it.. Webster’s dictionary. The government argues that the term “usual professional practice” refers to customary conduct. They further escape the federalism argument by stating that customary conduct is established by medical boards and the states. The comity here is apparent: One physician’s subjective view of what constitutes medicine is not relevant but a group of physicians subjective views of what constitutes medicine is considered “objective” and creates a standard.

The Government concludes by stating that neither petitioners nor Amici (interested parties who filed a brief in support of petitioners) have failed to show any doctors who have been convicted of “good faith conduct”. In the small pages of ContraFed, let me take a stab at that:

Dr. Roger Anderson, convicted upon the testimony of the notorious Timothy King (a paid government expert) who believes that patients who have “mental health co-morbidities” should be denied opiates. His case is pending before the 6th Circuit. Dr. Joel Smithers, convicted on the basis of similar expert testimony derived from the now defunct CDC Guidelines. Dr. George Naum, whose case is pending before the Supreme Court was convicted when the court utterly refused to allow him to present evidence that he was conforming to the legitimate practice of medicine. The list goes on. Hundreds of doctors around the country were convicted based on Government arguments of the application of an “objective” standard of practice that exceeds even the objective standard that the government advocates for in its brief.

We shall see, I’ll be there on March 1, 2022 and will be sure to update you on the oral arguments.

About the Author

Ron Chapman has spent his career defending federal defendants in high-profile federal criminal cases. He is also the author of Fight the Feds: Unraveling Federal Criminal Investigations. During his career he has learned that many federal defendants facing the power of the federal government lack resources and understanding of this complex field of law. The book and this companion website and guide were designed to close the informational gap between the federal government and federal criminal defendants by providing tactics and tips learned during my career fighting the federal government and its immense power. If you haven’t already, go to the beginning of this guide and review sections that are relevant to you and consider purchasing Fight the Feds to grow your knowledge of federal criminal law and investigations.