SCOTUS to Decide Future of Good-Faith Instruction in Physician Prosecutions

On November 5, 2021, the Supreme Court of the United States granted certiorari in U.S. v. Ruan and Kahn v. U.S., to decide whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted under 21 U.S.C. § 841(a)(1) even if the physician acted in good faith in that he or she “reasonably believed” or “subjectively intended” the prescriptions would fall within the usual course of practice. The Kahn case also puts forth the question of whether a physician’s honest but mistaken belief must be “objectively reasonable” that a prescription was given in the “usual course of professional practice” and whether the “usual course of professional practice” and “legitimate medical purposes” prongs of 21 CFR § 1306.04(a) must be read in the conjunctive or in the disjunctive.

Practitioners should watch these cases closely, as the decision should settle the conflict and inconsistency currently present among the circuits as it relates to the good-faith instruction. The good-faith instruction is essential for criminal defendants to help explain to the jury their intent and the difference between possible medical malpractice and criminal liability. Presently, the Fourth, Second, and Sixth Circuits have held that physicians are entitled to acquittal if they “reasonably believe” that their conduct complied with professional standards. Whereas the Ninth, First, and Seventh Circuits require the government to prove that a physician intentionally exceeded the bounds of professional practice. Finally, the Eleventh Circuit rejects both the “reasonable belief” instruction approved by the Second, Fourth, and Sixth Circuits and the more defense-friendly “subjective intent” defense approved by the First, Seventh, and Ninth Circuits. The Eleventh Circuit allows for no good-faith instruction and instead instructs “whether a [physician] had a good faith belief that he dispensed a controlled substance in the usual course of his professional practice is irrelevant.”

Practitioners defending physicians from prosecutions under 21 U.S.C. § 841(a)(1) need to be tracking the above cases and be aware of various decisions in their circuits. Further, practitioners should also submit jury instructions requesting the good-faith instruction.