Pain doctor made to prove care was proper

A column analyzing the impact of recent court decisions on physicians

By Amy Lynn Sorrelcovered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column. Posted April 6, 2009.

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Innocent until proven guilty? That principle was turned on its head when an Ohio jury was instructed that, to find a physician not guilty of drug trafficking, the doctor had to show he followed the standard of care when he prescribed pain medications.

The Ohio Supreme Court reversed course when it ruled March 4 that state prosecutors had the burden of proving beyond a reasonable doubt any alleged criminal activity, including standard of care violations. But the case gave physicians a scare over the potential that an everyday medical practice could be criminalized if doctors were forced to defend legitimate care, should the state pursue charges against them.

In 2004, a Clark County grand jury indicted rehabilitation specialist William W. Nucklos, MD, for drug trafficking -- a felony -- alleging he prescribed OxyContin (oxycodone) to several patients for illegitimate medical purposes.

Ohio law, like most state and federal laws, prohibits individuals from knowingly selling or distributing a controlled substance. The statutes generally exempt physicians and other health care professionals from criminal liability -- as long as their conduct falls within the standard of care, as outlined by other state laws and regulations.

Clark County prosecutors argued that the exception required an affirmative defense, one in which the doctor had the burden of proving he acted lawfully. The trial court instructed the jury along those lines, and jurors ultimately convicted Dr. Nucklos and sentenced him to 20 years in prison. Dr. Nucklos, who denied any wrongdoing, appealed to the 2nd District Court of Appeals, which reversed his conviction in 2007.

Following an appeal by the state, the Supreme Court unanimously found that the trial court's instructions improperly shifted the burden of proof to Dr. Nucklos.

Justices said an affirmative defense typically applies as an excuse or justification when a defendant's actions normally would be considered a criminal offense. Self-defense is a common example.

But physicians "legally and legitimately prescribe drugs to treat their patients on a daily basis. To accept the state's argument ... would place an unreasonable burden upon all doctors who prescribe drugs to prove compliance with statutes or regulations to avoid criminal liability for merely practicing medicine," Justice Evelyn Lundberg Stratton wrote. "We do not believe the General Assembly intended to criminalize legitimate medical treatment."

The high court voided the jury verdict. Clark County Prosecutor Stephen A. Schumaker said his office intends to retry the case. No formal action had been filed at press time in late March.

American Medical Association policy supports a balance between promoting pain relief and preventing abuse of pain medications.

A question of fairness

The jury's instructions deprived Dr. Nucklos of a fair trial and could have set a dangerous precedent, said Nancy Gillette, general counsel to the Ohio State Medical Assn. The organization filed a friend-of-the-court brief in support of Dr. Nucklos.

Given an increased scrutiny on pain treatment, the trial court decision, if allowed to stand, also threatened to chill doctors' willingness to treat chronic pain patients, the physicians' brief warned.

"In a criminal case, if you are convicted you go to jail. Therefore, due process standards are important," Gillette said. With the state Supreme Court's ruling, "physicians are free to practice medicine, including prescribing controlled substances, without fear of being accused of illegal trafficking by the very simple act of writing a prescription."

But the state already has a higher burden of proof than a physician defendant in a drug trafficking case, said Ohio Assistant Attorney General Elise W. Porter. Even with an affirmative defense, the state still would have to prove its entire case beyond a reasonable doubt, but physicians would have to show by a preponderance of evidence that they acted within the scope of medical practice.

The high court ruling "may make it more difficult to prosecute those abusing their privileges of being able to prescribe these drugs," Porter said.

State and federal prosecutors should be held to a higher standard, but that's not always the case, said John P. Flannery, a former New York federal prosecutor turned defense lawyer.

"The proposition is simple: If you're going to charge a doctor with criminal activity for treating pain patients, you really have to show he's dealing drugs rather than healing patients," said Flannery, who represented Dr. Nucklos and specializes in pain cases.

Ohio justices relied on a 1970 U.S. Supreme Court precedent, In re Winship, in which justices held the due process clause of the U.S. Constitution protects defendants against criminal conviction, unless the prosecution can prove beyond a reasonable doubt "every fact necessary" to constitute the alleged crime. The Ohio court said that, because of the exception in the state's drug trafficking law, proving a doctor's noncompliance with pain prescribing standards was a necessary part of establishing a drug trafficking claim.

"If it's a necessary element of the crime, then you, the government, have to prove it. Otherwise the presumption of innocence is meaningless," Flannery said.

A negligence vs. criminal standard

In pain cases, however, "the problem is, the government says, 'we don't have to prove you're drug dealing, just that you're not acting the way you should as a doctor.' That's different. That's more like a medical malpractice standard," Flannery said.

Other U.S. Supreme Court precedents have created some ambiguity on the matter.

In U.S. v. Moore, the high court in 1975 said that, despite exemptions under the federal Controlled Substances Act, physicians can be prosecuted for drug trafficking when their conduct falls outside the usual course of professional practice.

But federal law establishes that drug trafficking involving physicians "is no different than the pill pusher on the corner. We're talking criminal conduct, not medical malpractice," said Eli D. Stutsman, an Oregon-based appellate lawyer who has defended physicians in drug trafficking cases.

For example, Stutsman noted that the Ohio Supreme Court referenced one of its earlier decisions, State v. Sway in 1984, allowing the state to pursue drug trafficking charges against a physician. But the case turned on allegations the doctor traded drugs for sex.

Nevertheless, "federal prosecutors typically focus on medical malpractice issues, and if you're not careful, it takes on the appearance of a negligence case and not a drug case." For instance, prosecutors often turn to charting procedures, as they did in Dr. Nucklos' case.

Stutsman pointed to a 2006 U.S. Supreme Court decision in Gonzales v. Oregon, which could help physicians defend themselves against such tactics. In that case, justices rejected the federal government's arguments that physician-assisted suicide was not a legitimate medical purpose for prescribing controlled substances, despite a state law legalizing the practice. Stutsman represented the physician and patient in the case.

"The court made clear we're talking about [criminal] drug trafficking [under the Controlled Substances Act], and what the government was pursuing was lawful conduct," Stutsman said.

Still, physicians may face additional risks under state laws, such as Ohio's, that appear to directly tie civil medical liability standards to criminal drug trafficking statutes, he warned. For now, Stutsman said, the Ohio Supreme Court got it right.

Amy Lynn Sorrel covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column.

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