By Sarah Doberneck.
On March 1, 2022, the United States Supreme Court heard oral arguments in the case Kahn v. United States, which involves an Arizona doctor convicted of unlawfully prescribing controlled substances. Specifically, the doctor was convicted for an opioid pill peddling scheme. The case highlights the conflict between the government’s need to control the opioid epidemic and a doctor’s responsibility to treat patients for their pain.
Overprescribing of Opioids and the Resulting Epidemic
In the 1990s, health care providers began prescribing opioid pain relievers at higher rates than ever before. This was largely due to pharmaceutical companies’ assurances that opioids were not addictive and thus could safely treat patients’ pain. The increase in opioid prescriptions led to widespread misuse of both prescribed and non-prescribed opioids before it became clear that opioids are extremely addictive.
Misuse of opioids resulted in a substantial increase in overdoses. The situation became so pervasive that in 2017 the President declared the opioid crisis a public health emergency and both HHS and CDC implemented programs to combat the “opioid epidemic.” Although these programs have done a lot of good work, including increasing awareness of opioid addiction and providing training for doctors, the epidemic continues. In 2021 opioid overdose deaths increased by over 33% compared to the previous year.
Criminal Liability for Opioid Prescriptions
Doctors prescribing opioids are at the center of the epidemic. They often must choose between treating a patient’s pain or potential criminal liability. This is the type of dilemma that an Arizona doctor, Dr. Kahn, argues he had to make in his medical practice.
Dr. Kahn was convicted of several criminal charges, including dispensing and distributing controlled substances, possessing firearms in furtherance of a federal drug trafficking crime, and money laundering. Dr. Kahn had a medical practice in Ft. Mohave, Arizona, and focused on pain management. He regularly prescribed opioids to patients, and as time went on, spent less and less time with the patient before writing the prescription. Significantly, the number of pills prescribed aligned with the patient’s ability to pay rather than a medical need, and the cost of the prescriptions followed the “street price” of the pills. His patients were also selling the pills prescribed to them.
A central issue in this case, and in cases where medical professionals are charged for unlawfully dispensing controlled substances, is whether the defendant did so knowingly and outside the usual course of medical practice, or without a legitimate medical purpose. Dr. Kahn argues that he did not know his patients were abusing their medications, or that his prescriptions were not outside professional norms. The government asserts that Dr. Kahn’s actions cannot be considered standard medical practice because he either did not examine the patients, or examined them only briefly, before prescribing the medication and then falsified medical charts regarding the examinations.
This case is now before the United States Supreme Court. It requires the justices to interpret a portion of the Controlled Substances Act that exempts prescriptions “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” Ultimately, it comes down to whether a court should view a doctor’s adherence to this requirement subjectively or objectively.
An objective test would consider the trends of medical professionals as a whole in prescribing opioids. A subjective test gives more weight to a doctor’s good faith assessment of an individual patient’s needs when prescribing opioids, even if at odds with generally accepted medical practices. Since HHS and CDC started combating the opioid epidemic, prescriptions of opioids have markedly declined. Some attribute this decline to doctors’ fear of facing criminal liability or an investigation by the U.S. Drug Enforcement Administration. So, as doctors have generally shied away from prescribing opioids, it would seem that Dr. Kahn prescribing them so frequently puts his conduct outside of the legitimate medical purpose in the regular course of practice sphere.
Yet, the objective test relies on standards of care that tend to change. It also fails to consider a doctor’s subjective decision to prescribe medication based on their interactions and knowledge of the patient. For example, a doctor may reasonably and legitimately decide to prescribe opioids to a patient with substance abuse problems to avoid that patient reverting to taking illicit substances. This is a real concern many health care providers have. As one commentator noted, “If we are closing our doors to patients who have been on long-term opioids or need opioids for their pain, then we’re essentially asking our patients to find pain relief outside of the medical system.” Yet while the doctors’ lawyers argue what is essentially a “good faith” defense, the prosecution asserts that the doctors actually just “want to be free of any obligation even to undertake any minimal effort to act like doctors when they prescribe dangerous, highly addictive and, in one case, lethal doses of drugs, to trusting and vulnerable patients.” The two sides are hopelessly split on which test the Supreme Court should adopt.
The Supreme Court is expected to issue its opinion in July.If the Court sides with the doctors, it will provide some additional protection to doctors that are otherwise wary of prescribing opioids, but it may also have the negative effect of allowing pill pushers to escape liability. If the Court supports the prosecution, then doctors may prove even more reluctant to prescribe opioids, even when they believe that the patient truly needs the medication.
The Court may also be able to issue a standard that combines the objective, commonly followed medical standards and doctor’s subjective viewpoints. This could provide the right balance between holding doctors accountable for improperly prescribing opioids while also exempting doctors who prescribe the medication to truly help their patients.