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Doctors Rush to Use Supreme Court Ruling to Escape Opioid Charges

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dr Nelson Onaro admitted last summer to writing illegal prescriptions, although he said he only thinks about his patients. From a tiny, brick-built Oklahoma clinic, he distributed hundreds of opioid pills and dozens of fentanyl patches for no legitimate medical purpose.

“These drugs, from my point of view, were prescribed to help my patients,” Onaro said in court as he reluctantly pleaded guilty to six counts of drug trafficking. Because he confessed, the doctor faced a reduced sentence of three years or less.

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But Onaro changed his mind in July. In the days leading up to his sentencing, he asked a federal judge to throw out his plea deal and put his case to trial. For any chance of exoneration, he would face four charges and the possibility of a heavier sentence.

Why take the risk? A Supreme Court ruling has raised the bar for a conviction in a case like Onaro’s. In a June decision, the court said prosecutors not only had to prove that a prescription was not medically justified — possibly because it was too large or dangerous or simply unnecessary — but also that the prescribing doctor knew it.

Suddenly, Onaro’s state of mind carries more weight in court. Prosecutors have not objected to the doctor’s dropping out of most of his charges, acknowledging in a court filing that he faces “a different legal calculus” following the Supreme Court’s decision.

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The court’s unanimous ruling complicates the Justice Department’s ongoing efforts to prosecute irresponsible prescribers for fueling the opioid crisis. Previously, lower courts had failed to consider the intent of a prescribing physician. So far, accused doctors have mostly not been able to defend themselves by arguing that they acted in good faith when they wrote bad prescriptions. Now they can, lawyers say, although it’s not necessarily a get-out-of-jail card.

“Essentially, the doctors were handcuffed,” said Zach Enlow, Onaro’s attorney. “Now you can take off your handcuffs. But that doesn’t mean they’re going to win the fight.”

The Ruan Supreme Court’s June 27 decision against the United States was marred by the country-shaking controversy sparked three days earlier when the court overturned state abortion rights. But the lesser-known ruling is now trickling quietly through federal courts, where it has emboldened defendants in overprescribing cases and may have a deterrent effect on future prosecutions of doctors under the Controlled Substances Act.

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In the three months since it was issued, the Ruan decision has been invoked in at least 15 pending criminal cases in 10 states, according to a KHN review of federal court records. Doctors have cited the decision in post-conviction appeals, acquittal requests, new court cases, reversals of lawsuits and a failed attempt to bar testimony from a prescribing expert, arguing their opinion is now irrelevant. Other defendants have successfully petitioned to have their cases postponed to allow the Ruan decision to feed into their arguments at upcoming trials or sentencing hearings.

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David Rivera, a former Obama-era US attorney who once led overprescribing prosecutions in Middle Tennessee, said he believes doctors have a “great chance” of overturning convictions if they are prohibited from providing a bona fide defense to argue, or a jury ordered to ignore a .

Rivera said defendants running real pill factories would still be convicted even if a second trial were ultimately required. But the Supreme Court has extended a “lifeline” to a small group of defendants who “renounced their hearts, not their minds,” he said.

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“What the Supreme Court is trying to do is separate a bad doctor from a person who may be licensed to practice medicine but is not a doctor at all and is a drug dealer,” Rivera said. “A doctor who acts with the sincere belief that he is doing the right thing, even though he may be terrible at his job and shouldn’t be trusted with human life – that’s still not a crime.”

The Ruan decision resulted from the appeals of two doctors, Xiulu Ruan and Shakeel Kahn, who were separately convicted of operating pill factories in Alabama and Wyoming, respectively, and then sentenced to 21 and 25 years in prison, respectively. In both cases, prosecutors relied on a common tactic to show the prescriptions were a crime: expert witnesses reviewed the defendants’ prescriptions and said they were far from what a reasonable doctor would do.

But when writing the Supreme Court opinion, then-Judge Stephen Breyer insisted that the burden of proof should not be so easily overcome and remanded both convictions to lower courts for reconsideration.

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Because doctors are allowed and expected to dispense drugs, Breyer wrote, prosecutors must show not only that they wrote prescriptions without a medical purpose, but that they did so “knowingly or intentionally.” Otherwise, the courts risk “penalizing behavior that is close but on the allowable side of the criminal line,” Breyer wrote.

For the defenders, the unanimous verdict was a clear message.

“This is a hyperpolarized time in America and particularly on the court,” Enlow said. “And yet this was a 9-0 verdict saying that it’s the mens rea — or mental state of the doctor — that matters.”

Perhaps nowhere was Ruan’s decision more urgent than in the case of Dr. David Jankowski, a Michigan doctor who was on trial when the burden of proof shifted beneath his feet.

Jankowski was convicted of federal drug and fraud felonies and faces 20 years in prison. In a ruling, the DOJ said the doctor and his clinic had cared for people who had “no need for the drugs” that were “sold on the street to treat the addictions of opioid addicts.”

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Defense attorney Anjali Prasad said the Ruan verdict was dropped ahead of jury deliberations in the case, but after prosecutors spent weeks making the case that Jankowski’s conduct was not that of a reasonable prescriber – a legal standard that alone no longer sufficient to judge.

Prasad cited Ruan’s decision in a motion for a new trial, which was denied, and said she intends to use the decision as the basis for an upcoming appeal. The attorney also said she is in talks with two other clients about appealing their convictions to Ruan.

“I hope that criminal defense attorneys like me are more encouraged to take their cases to court and that their clients are 100% willing to fight the FBI, which is not an easy task,” Prasad said. “We just fought it out in the courtroom. This is how we can assert ourselves.”

Some defendants try. So far, a few have made small gains. And at least one suffered a crushing defeat.

In Tennessee, practicing nurse practitioner Jeffrey Young, who was accused of trading opioids for sex and notoriety for a reality show pilot, successfully postponed his trial from May to November to explain Ruan’s decision, arguing that it did “The landscape of wartime government prescribers would drastically change.”

Also in Tennessee, Samson Orusa, a doctor and pastor convicted last year of dispensing opioid prescriptions without examining patients, filed a motion for a new trial based on the Ruan decision and then persuaded a reluctant judge to overturn his conviction to postpone thinking about it for six months.

And in Ohio, Dr. Martin Escobar passed the Ruan verdict to avoid jail time at the very last hour.

Escobar in January pleaded guilty to 54 counts of distributing a controlled substance, including prescriptions that caused the deaths of two patients. After the Ruan decision, Escobar attempted to withdraw his plea, saying he would have gone to court had he known prosecutors would have to prove his intent.

A week later, on the day Escobar was scheduled to be sentenced, a federal judge denied the motion.

His guilty plea stayed.

Escobar got 25 years.

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism on health issues. Along with Policy Analysis and Polling, KHN is one of the three major operational programs of the KFF (Kaiser Family Foundation). KFF is a donated non-profit organization that provides information on health issues to the nation.

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