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"We are taking on this fight for you. I've heard your voice and I've put it into the briefs we submitted." ~Atty Ron Chapman

We posted an article last week about the Supreme Court case coming up on March 1, 2022. On Jan 4, Claudia interviewed Ron Chapman, who submitted an Amicus Brief in support of the doctors in this case.  Ron broke it down for us explaining what this means for CPP's and doctors. Listen to the interview to find out what Ron thinks the best and worst case scenarios are depending on the outcome of this hearing.

Summary of the issue

  • Under the Controlled Substance Act (CSA), the criminal standard for prescribing says a physician can't prescribe outside the course of professional practice other than for a legitimate medical purpose, When a doctor elects to prescribe a medication, he needs to make sure he establishes a physician patient relationship and that the prescription is for a legitimate medical need. That should be the extent of the discussion. Courts should not debate about whether it's the right or effective treatment. All the court should ask is if the doctor was acting like a doctor and if he was, then it should be done, acquitted. No conviction.
  • Over the last ten years the federal government has decided to crack down on opioids. They took out pill mills because there were bad doctors. So they hired a bunch of prosecutors and DEA agents, and they started going after these doctors. Once the government ran out of nails (doctors) to hammer and already had all these hammers (DEA agents/prosecutors), it needed more nails to go after. So, they started asking judges and juries to decide closer and closer calls in the practice of medicine, so more doctors would be caught up in its net. This started around 2011.They hired experts to get on the stand and say "here is what the standard is, and if you don't do what I think you should do then you're committing a crime." They got on the witness stand and started spouting their theories of what doctors should and shouldn't do.
  • In 2016 the federal government decided to take these theories of expert witnesses and they codified them in the CDC Guidelines. Now federal courts are using the Guidelines to convict physicians. The problem is there is no consensus on how a physician should prescribe, it's patient specific and can't be reduced to these ideas. The idea that it can is nonsense.

History of Supreme Court case on March 1, 2022 (Dr. Ruan, Dr. Naum, and Dr. Couch)-

  • In the case of Dr. Ruan and Dr. Couch, they were denied something very important. They were denied good faith instruction. In the past, even though the government had changed the standard of prescribing, they hadn't until this case prevented the doctor from saying they prescribed in good faith .The federal government decided to take that away. So in Dr. Ruan and Dr. Couch's case the government said that a physician can't defend himself by saying he prescribed in good faith. They stripped them of that right. Dr. Ruan and Couch's case went all the way to the Supreme Court and is sitting there now.
  • There was another case, Dr. Naum, that was taken to the Supreme Court. In his case the government went a step further and said medical need for the prescription was completely irrelevant, and the only thing that mattered was if you're violating a standard of practice. If you stepped outside state prescribing guidelines, you're going to be convicted. This case made it up to the Supreme Court, also, and is sitting there now.
  • This type of Supreme Court hearing that was granted is called a certiorari. Less than 1% of all cases are granted this chance. The fact that these cases were granted certiorari is a really good sign.

What does this mean?

  • According to Ron, The Supreme court saw there was a problem. They saw that there are patients in pain, doctors who don't know what they're supposed to be doing, dwindling numbers of pain management providers, and  they realized it's something the court needs to pay attention to.
  • Dr. Ruan's lawyer will lead this, stand up before the court and tell them what he thinks.
  • The US Solicitor General will make her arguments, and the court will issue an opinion about the narrow issue of good faith a few months later.
  • Dr Naum's case is less narrow and involves the bigger issue. That is whether a court can disregard the medical need of a prescription.
  • The court is going to decide Dr. Ruan's case first and hold onto Dr. Naum's case because they believe the opinion in Dr. Ruan's case will likely impact Dr. Naum's case.
  • So Dr. Ruan's case is about including the good faith clause. Dr. Naum's case is about the idea that medical need for a prescription is irrelevant. The outcome of the first case will likely affect the outcome of the other.

Possible outcomes of the Supreme Court hearing:

  1. The court could not go in our direction and make it harder for CPP's and doctors. But, Supreme Court doesn't usually grant cases like this if they intend on denying them outright, so we think there will be some traction, some explanation. Meaning, this outcome is HIGHLY unlikely.
  2. They decide Dr, Ruan's case and that's it. 
  3. They decide both cases and change the landscape for physicians and CPP's across the USA. (This is what we're hoping for and why this case is such a big deal). 

Other comments by Ron Chapman

  • Because of the efforts of The Doctor Patient Forum organization and other advocacy organizations, there is traction in the press and Supreme Court. It's having an effect on other cases. 
  • Courts are starting to see that not every doctor is an evil drug dealer, and that they prescribed with reason. That shift is because of this case.
  • The tide is changing. We see juries warming up to this idea that opioids are beneficial.
  • "The opiate sphere is the only place in which juries are required to decide complex medical matters."

Steps of what happens in USA - Cycle of our justice system:

  1. The government pushes- they start with a valid reason to push
  2. They push too far,
  3. The Supreme Court slaps them on the wrists; guidance is given. 
  4. We are at that critical peak where the federal government's power went too far and the Supreme Court will bring it back.

What exactly does this mean for us?

  • It's possible it will get worse before it gets better, but it WILL get better
  • Doctors are now seeing the court has accepted the case, and they're curious about it. If the Supreme Court issues strong language condemning the government's conduct then we will see a quick turnaround where doctors will feel less fearful and more free to prescribe. 

What can CPP's do while they are fighting this at the Supreme Court (federal level)?

  • Talk to your state legislators. While Ron and others are fighting this on the federal level, you can still have a voice at the state level. If you have a doctor who cut you off or abandoned you, let the state know. If you think a state law is impacting your ability to receive health care, let your local state legislator know, because fighting at the state level is important.

What can doctors do to protect themselves?

Dr. Couch and Dr. Ruan are serving 20 years in prison.

Claudia will also interview Atty Jennifer Oliva, who also submitted an Amicus Brief and is very involved in this case. We will break that interview down for you, also. Don't lose hope!

The Doctor Patient Forum

Claudia A. Merandi 5 Chedell Avenue / East Providence, RI 02914 / USA 1.401.523.0426

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