In the fight for ethical pain management, the federal courts have had difficulty interpreting and applying the medical standard of care when it comes to physicians’ prescription-related criminal matters. Now, the nation’s highest court has the chance to correct this. And if you are a pain management specialist or you have a vested interest in how prescription-related criminal cases are decided, this is your chance to weigh in.
Before the Supreme Court of the United States is an argument that pain management clinics, specialty physicians, and other healthcare providers involved in pain medicine have waited all too long to be decided. With your amicus support, we can educate the justices on why this is important for the practice of medicine and the prevention of a suffering patient population.
For most of the 21st century, the federal government’s methods for criminalizing malpractice have put physicians, particularly those who specialize in pain management, in a troublesome, often career-ending place.
Why? Because the feds have changed the phrase “the bounds of professional practice” — and, similarly, “legitimate medical purpose” and “course of professional practice” — to mean a departure from nationally recognized standards and fully into the drug trafficking arena. As a result, physicians who simply want to ease their patients’ long-lasting pain symptoms are paying the price criminally and professionally.
Traditionally, drug trafficking charges are only levied against physicians who cease acting as a physician (i.e., acts “outside the bounds of medical practice”), and instead engage in unlawful drug transactions (i.e., drug pushing or diversion). Yet, over the last 10-plus years, the federal government has criminalized violations of nationally recognized standards of care — standards that physicians already disagree on when it comes to pain management. Because the fields of pain management and addiction medicine are rapidly evolving, the standards constantly shift with them.
Making matters much worse has been the release of the Centers for Disease Control Guidelines for Prescribing Opioids for Chronic Pain. These went from being suggested guidelines to full-blown standards adopted into state and federal administrative codes. As a result, the standard of care has become heightened, more complex, and difficult to follow — to the point where several federal circuits are unable, or have refused, to interpret the applicable standard when it comes to criminal liability.
Is the standard objective or subjective? Disjunctive or conjunctive? Are the meanings “legitimate medical purpose” and “usual course of professional practice” one and the same? These are questions with which the courts have been wrestling, often coming up with vague, if any, answers.
As this is happening, the practice of medicine is left hanging in the balance. From pain management specialists to addiction medicine practitioners, and even general family doctors, physicians remain fearful of prescribing out of liability concerns. Meanwhile, their patients are turning to illicit drugs to ease their pain, further fueling the true cause of the opioid epidemic.
If your practice or organization feels threatened by this shift, you now have the chance for your voice to be heard before the nation’s highest court.
The Supreme Court of the United States is considering Naum v. United States, a case that calls for putting a definitive standard in place for prescribing controlled substances in the U.S. This would address the vagueness of 21 U.S.C. § 841(a)(1) and 21 C.F.R. § 1306.04 and eliminate any ambiguity when federal circuits are asked to consider whether a pain management specialist (or any other practitioner) ceased to act as a physician and instead served as a drug dealer.
The argument is authored by Ronald W. Chapman II, who represents the defendant in Naum. As chairperson of the White Collar Defense & Government Investigations practice at Chapman Law Group, Chapman has faced this legal argument in several federal circuits. In Naum, the U.S. Supreme Court has a case that is representative of why a definitive standard must be put in place.
We are calling on you to show your support of this crucial legal issue, by way of an Amicus Brief. This is an issue that affects you and your constituents directly, and it will clarify how the criminal law procedure applies to the practice of not just pain medicine, but overall medical practice.
You may find the brief for Naum v. United States here. We appreciate your consideration in helping the high court understand how much is at stake for the many members of pain management medical community, and, just as important, the patients who rely on them.
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Ronald W. Chapman II, LL.M.
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Chairperson of White Collar Defense & Government Investigations
Michigan Office
1441 W. Long Lake Road, Suite 310
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Phone: (248) 644-6326
Ronald Chapman II, who focuses exclusively on defending health care providers nationwide under DEA and federal prosecutor investigation, offers expertise in “Criminalizing Good Medical Care: The Opioid Crisis and How to Practice Safely.”
The CDC Guidelines for prescribing controlled substances like opioids, and the DEA/DOJ investigations that follow, are putting physicians and their pain patients in a regulatory crunch.
On a recent podcast, Ronald Chapman II explains why pain management physicians are often in a difficult situation when it comes to DEA compliance and treating patients.
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