Last summer, Dr. Nelson Onaro admitted that he had issued unlawful prescriptions, but stated that he was merely thinking about his patients. Without a valid medical reason, he distributed hundreds of opioid pills and dozens of fentanyl patches from a little brick clinic in Oklahoma.
“From my perspective, those pills were recommended to treat my patients,” Onaro said in court as he reluctantly pleaded guilty to six counts of drug distribution. Due to his confession, the doctor was likely to receive a prison term of three years or less.
In July, Onaro altered his mind. In the days preceding his sentencing, he petitioned a federal judge to reject his plea agreement and put his case to trial. For the potential of exoneration, he would face four times the charges and a heavier sentence.
Why take a chance? A Supreme Court decision has increased the standard for conviction in Onaro’s case. In a June ruling, the court said that prosecutors must demonstrate not only that a prescription was not medically justified either because it was too large, harmful, or simply superfluous but also that the doctor was aware of this fact.
Suddenly, Onaro’s mental state is given greater weight in court. The prosecution did not object to the doctor withdrawing his guilty plea to the majority of his charges, acknowledging in a court filing that he faces “a changed legal calculation” in light of the Supreme Court’s ruling.
The majority decision of the court undermines the Department of Justice’s continued efforts to hold negligent prescribers legally liable for contributing to the opioid crisis. Previously, lower courts did not examine the intent of a prescriber. When writing improper prescriptions, doctors on trial were often unable to argue that they were acting in good faith until recently. Now they can, according to attorneys, although it is not necessarily a free pass from incarceration.
Onaro’s attorney, Zach Enlow, stated: “Essentially, the doctors were handcuffed.” “They may now remove their handcuffs. But that does not imply they will win the battle.”
The Supreme Court’s ruling in Ruan v. United States, handed down on June 27, was overshadowed by the nation-shaking debate that erupted three days earlier, when the court eliminated federal abortion rights. However, the lesser-known verdict is currently quietly seeping through federal courthouses, where it has empowered defendants in overprescribing cases and may chill future prosecutions of doctors under the Controlled Substances Act.
Attorney Lawrence Robbins argues on behalf of two doctors challenging their convictions for drug peddling before the Supreme Court. In a June 2022 unanimous ruling, the court upped the bar in such prosecutions by requiring prosecutors to establish that prescribers knew their prescriptions were not medically necessary. Art Lien
According to a KHN assessment of federal court records, the Ruan ruling has been cited in at least 15 ongoing prosecutions in 10 states in the three months since it was announced. In post-conviction appeals, petitions for acquittal, new trials, plea reversals, and a failed attempt to exclude the testimony of a prescribing expert, doctors referenced the ruling to argue that their view was now irrelevant. Other defendants have successfully petitioned to postpone their impending trials or sentencing hearings in order to include the Ruan ruling into their arguments.
David Rivera, a former U.S. attorney who led overprescribing prosecutions in Middle Tennessee during the Obama administration, believes that doctors have a “great chance” of having their convictions overturned if they are prohibited from arguing a good faith defense or if the jury is instructed to disregard such a defense.
Rivera stated that individuals who ran legitimate pill mills would still be found guilty, even if a second trial was ultimately necessary. However, the Supreme Court has offered a “lifeline” to a select set of defendants who “acted with their heart and not their head,” he said.
“What the Supreme Court is attempting to do is differentiate between a terrible doctor and a person who may have a license to practice medicine but is working as a drug dealer,” Rivera explained. “A doctor who acts out of a sincere belief that he is doing the right thing is not guilty of a crime, even if he is terrible at his profession and should not be trusted with human lives.”
The Ruan case stemmed from the appeals of two doctors, Xiulu Ruan and Shakeel Kahn, who were separately convicted and sentenced to 21 and 25 years in jail for operating pill mills in Alabama and Wyoming, respectively. In both cases, prosecutors used the same strategy to prove the prescriptions were illegal: expert experts testified that the defendants’ prescriptions deviated significantly from what a reasonable doctor would do.
However, in his judgment for the Supreme Court, then-Justice Stephen Breyer argued that the burden of proof should not be so low, remanding both convictions to the lower courts for reevaluation.
Breyer noted that while doctors are permitted and expected to dispense pharmaceuticals, prosecutors must demonstrate not only that the doctors issued prescriptions with no medical purpose, but also that they did it purposely “intentionally or knowingly.
Aside from that, the courts run the risk of punishing “behavior that is close to, but on the permissible side of, the criminal line “Breyer composed.
The unanimous decision conveyed a clear message to the defense attorneys.
“This is a time of extreme polarization in America, especially on the court,” Enlow stated. “Yet, this 9-0 judgement stated that the mens rea, or mental condition of the doctor, is relevant.”
In the case of Dr. David Jankowski, a Michigan physician who was on trial when the burden of proof switched, maybe nowhere was the Ruan judgment more crucial than it was in this instance.
Jankowski was found guilty of federal narcotics and fraud offenses and was sentenced to twenty years in prison. In announcing the verdict, the Department of Justice stated that the doctor and his clinic supplied individuals who had “no need for the medications,” which were then “sold on the street to feed the addictions of opioid addicts.”
Anjali Prasad, a defense attorney, stated that the Ruan finding was reversed before the jury deliberated, but only after prosecutors spent weeks arguing that Jankowski’s actions was not that of a reasonable prescriber – a legal standard that is no longer sufficient to convict.
Prasad mentioned the Ruan judgment in a refused plea for a new trial and stated that she will use the decision as the foundation for an upcoming appeal. Additionally, the attorney stated that she is in talks with two other clients about filing appeals with Ruan.
“My expectation is that criminal defense attorneys, such as myself, would be more willing to take their cases to trial and that their clients will be fully prepared to fight the federal government, which is not an easy undertaking,” Prasad said. “We simply engage in a courtroom brawl. We can succeed in this manner.”
A few defendants are attempting. A handful have earned tiny victories thus far. And at least one was crushed by defeat.
In Tennessee, nurse practitioner Jeffrey Young, who is accused of trading opioids for sex and fame for a reality show pilot, was able to postpone his trial from May to November to account for the Ruan decision, arguing that it would “dramatically alter the landscape of the Government’s war on prescribers.”
Samson Orusa, a doctor and preacher who was convicted of dispensing opioid prescriptions without evaluating patients in Tennessee last year, submitted a motion for a new trial based on the Ruan judgment and persuaded a court to defer his punishment for six months so he could review it.
In Ohio, Dr. Martin Escobar referenced the Ruan decision in a last-ditch bid to avoid jail time.
In January, Escobar pled guilty to 54 charges of trafficking a controlled drug, including prescriptions that killed two patients. After the Ruan decision, Escobar attempted to withdraw his guilty plea, claiming that he would have gone to trial if he had realized that prosecutors were required to show his intent.
A week later, on the scheduled day of Escobar’s sentencing, a federal judge refused the motion.
His guilty plea did not change.
Escobar received 25 years.
KHN (Kaiser Health News) is a national news organization that delivers in-depth health-related journalism. KHN, with Policy Analysis and Polling, is one of KFF’s three primary running programs (Kaiser Family Foundation). KFF is an endowed nonprofit organization that provides information on national health issues.