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Healthcare Practice
 The Supreme Court ruled that prosecutions under the CSA for excessive prescribing of opioids and other addictive drugs must prove that the doctors knew the prescriptions lacked a legitimate medical purpose. The Court vacated the circuit court of appeals opinions that upheld the underlying convictions and directed them to consider whether the jury instructions given at the conclusion of the trial were consistent with the Supreme Court’s standard.
Upon remand from the Supreme Court, on January 5, 2023, the United States Court of Appeals for the Eleventh Circuit, and on February 3, 2023, the United States Court of Appeals for the Tenth Circuit, both ruled that the jury instructions used to convict the doctor-defendants were inconsistent with the Supreme Court’s opinion and were not harmless error. Both Court of Appeals generally recognized that to obtain a conviction under 21 U.S.C. § 841(a), the government must prove beyond a reasonable doubt that a defendant (1) knowingly or intentionally dispensed a controlled substance, and (2) knowingly or intentionally did so in an unauthorized manner. Both courts concentrated on the defendants’ subjective mens rea. The Eleventh Circuit panel provided the following clarification: “[W]ithout further qualification, the phrase ‘good faith’ encompasses both subjective and objective good faith. In the context of § 841 though, as the Supreme Court has explicitly held, only the subjective version is appropriate. The instruction given by the district court did not contain any qualification to make this clear to the jury.” Thus, both Court of Appeals vacated the doctors’ controlled substances convictions and remanded the cases to the district courts for further proceedings consistent with the Court of Appeals’ opinions.
While it is still too early to measure the impact these rulings have on prosecutions for violations of the Controlled Substances Act, the rulings have provided defense counsel additional arguments. Particularly in prosecutions of physicians, raising reasonable doubt that the physician lacked subjective good faith that he/ she prescribed controlled substances in an unauthorized manner should be substantially easier in all but the most extreme fact patterns.
Jim Hoover is a Partner at Burr & Forman LLP in Birmingham, AL. Contact him at:

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