Criminal Defense Attorney Analysis of Internet Pharmacy, Prescription, and Drug Law

The Internet Pharmacy Doctor “Good Faith” Jury Instruction

Many federal circuits permit a good faith jury instruction in cases in which doctors are prosecuted under the Controlled Substances Act.  Internet pharmacy law cases involving doctors are no different.  Below is an illustrative case:

U.S. v. Hurwitz, 459 F.3d 463 (2006):  The Fourth Circuit Court of Appeals reversed Dr. William E. Hurtwitz’s conviction due to the trial court’s failure to instruct the jury on objective ”good faith.”  Hurwitz was convicted of one count of conspiracy, one count of drug trafficking resulting in death, two counts of drug trafficking resulting in serious bodily injury, and forty-six counts of drug trafficking.  The jury acquitted Hurtwitz on one count of engaging in a continuing criminal enterprise and two counts of health care fraud.

The evidence at trial suggested that a number of Hurtwitz’s patients were arrested for selling prescription drugs.  After identifying Hurtwitz as their source, investigators learned that Hurtwitz was prescribing extraordinarily high doses of opioids to his patients:

Hurtwitz often wrote prescriptions calling for a patient to take thirty 80-milligram Oxycontins per day.  For Hurtwitz’s patients in the high-dose program, a prescribed opioid dosage of 100 pills per day was not uncommon . . . Between July 1999 and October 2002, Hurwitz prescribed to one patient a total of more than 200,000 pills, which amounted to more than 400 pills per day . . . Patients with limited sources of income spent tens of thousands of dollars on narcotics prescribed by Hurtwitz.

Hurwitz argued that he was not a pill-pusher.  He required patients to fill out medical questionnaires and submit medical records.  Hurwitz also actively conferenced with other professionals with regards to the treatment of pain.  Additionally, the defense argued that the high-dose protocol was appropriate medical practice “for treating patients with intractable pain.”  Because the body quickly develops resistance to opioids, high doses become necessary to have any effect whatsoever.

The appellate court reversed Dr. Hurwitz’s conviction, because the trial court erred in failing to instruct the jury on “good faith.”  The Code of Federal Regulations states that a controlled substance prescription is effective only if it is “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.”  The Appellate Court found that “a doctor’s good faith generally is relevant to a jury’s determination of whether the doctor acted outside the bounds of medical practice or without a legitimate medical purpose when prescribing narcotics.”  “Some latitude must be given to doctors trying to determine the current boundaries of acceptable medical practice.  Thus, courts have consistently concluded that it is proper to instruct juries that a doctor should not be held criminally liable if the doctor acted in good faith when treating his patients.”

In Internet pharmacy law prosecutions involving doctors, criminal defense attorneys should push for a good faith jury instruction.  The failure to instruct the jury on good faith was not harmless error in U.S. v. Hurwtiz.  It was important enough to require reversal, even in the light of arguably overwhelming evidence of guilt.  Thus, in many circuits, obtaining such instruction is a very realistic possibility.

Keep in mind that a good faith instruction is relevant even in post-Ryan Haight Act prosecutions.  Note that even though the Ryan Haight Act requires face to face medical examinations, the fact that a face to face examination is conducted is not per se compliance with the Controlled Substances Act.  The DEA Rule implementing the Ryan Haight Act specifically states that a court must still analyze whether the facts of each case suggest that the prescription was issued for a legitimate medical purpose and in the usual course of professional practice:

At the same time, it is crucial to bear in mind that, as Congress expressly stated under the Act, the mere fact that the prescribing practitioner conducted one in-person medical evaluation does not demonstrate that the prescription was issued for a legitimate medical purpose within the usual course of professional practice.  Even where the prescribing practitioner has complied with the requirement of at least one in-person medical evaluation, a prescription for a controlled substance must still satisfy the additional, fundamental prerequisite that has been legally mandated for more than 90 years:  it must be issued for a legitimate medical purpose by a practitioner acting in the usual course of professional practice.

Consequently, criminal defense lawyers should still request a good faith instruction even in criminal cases originating from post-Ryan Haight Act offenses.

Moreover, I would argue that a good faith instruction is required even in federal criminal cases in which the doctor is not indicted or prosecuted.  When a doctor involved in an online pharmacy operation is not indicted, the doctor’s good faith is still relevant.  For example, assume that the players in an online consultation service internet pharmacy are indicted, including the website owner and pharmacist.  However, for some reason or another, assume the doctor was not indicted.  I would still argue that the jury must be instructed on a doctor’s good faith.  Because the website owner or pharmacist can only be prosecuted if the prescription was invalid (i.e. it was issued by a doctor without a legitimate medical purpose or not in the course of a professional practice), the doctor’s good faith is still a relevant inquiry.  In other words, whether the pharmacist or website owner is guilty is largely dependant on the customer’s interaction with the physician.  If the prescription was objectively issued in good faith by a physician, then the pharmacist or website owner should not be convicted.

The content on this post does not constitute legal advice and is for informational purposes only.  You should not act upon the information presented on this website without seeking the advice of legal counsel.  Should you wish to speak to an experienced criminal defense lawyer knowledgeable in prescription, drug and Internet pharmacy law, including the Controlled Substances Act, the Ryan Haight Act and Federal Food, Drug and Cosmetic Act violations, please feel free to contact me directly.

Category: Court Cases