Doctors who prescribe narcotic pain medication are being charged criminally
Recently there has been a surge in criminal filings against doctors for prescribing medication “without a medical purpose.” (Cal. Health & Safety Code section 11153.) With growing scrutiny around the abuse of prescription medications, law enforcement has started to focus less on the users of these drugs and more on the people who prescribe them. This can be a terrifying situation for a doctor who was trying to treat his patients, but ended up facing felony charges. If a doctor was convicted of a felony violation of Health & Safety Code section 11153, he would lose his license and possibly face jail or prison.
This is an unfortunate turn of events, as doctors have been taught for the last two decades that they were under treating pain, and should not be afraid to prescribe narcotic medication. Consequently, doctors changed their prescribing habits, and now they are being charged criminally for the very conduct they were instructed to do.
If a doctor is acting in good faith, he is exempt from criminal liability
Thankfully, there is an affirmative defense that a doctor may rely upon: that of good faith. If a doctor prescribed while acting in good faith, he is exempted from criminal liability. (Health & Safety Code 11210.) However, although this defense is available, it is considered “an affirmative defense.” This means it is incumbent upon the doctor to raise this defense at trial.
a doctor may prevail if he is charged criminally
Recently, The Law Office of Kelly Babineau represented a doctor that was charged with 12 felony counts of violating Health & Safety Code section 11153 (prescribing without a medical purpose), and three counts of Welfare & Institutions Code 14107 (Medi-Cal fraud). The charges that were filed in this case where the result of an undercover operation by the government. Four different agents posed as patients, all presenting with different medical ailments. The doctor treated each patient accordingly, prescribing the medication he believed appropriate for the patients. After a 6 week trial, which included testimony of all 4 agents, two medical experts and the doctor, the jury acquitted the doctor of all counts.
It was an extremely emotional trial, as the doctor’s whole life had been devastated by the criminal process, and a loss on any count would have resulted in the loss of his medical license. However, the jury was diligent and thoughtful in their analysis of the evidence and the law. When the jury announced they had a verdict after only a few hours of deliberation, the doctor feared the worst. However, as the verdicts were read: (“We, the jury in the above entitled case, find the defendant NOT GUILTY in Count — of the indictment”), the doctor slumped onto the table, overcome with relief and joy. It was a wonderful and just outcome.