Academic journal article Notre Dame Law Review

Illegitimate Overprescription: How Burrage V. United States Is Hindering Punishment of Physicians and Bolstering the Opioid Epidemic

Academic journal article Notre Dame Law Review

Illegitimate Overprescription: How Burrage V. United States Is Hindering Punishment of Physicians and Bolstering the Opioid Epidemic

Article excerpt

INTRODUCTION

When physicians enter the practice of medicine, they swear to follow the principle: "First, do no harm." (1) In 2006, Dr. Dewey MacKay of Utah prescribed prescription opioid medication to patient David Wirick, killing him. In 2013, a jury convicted him of two counts of distributing Schedule II and III controlled substances, the use of which resulted in death. (2) The district court sentenced Dr. MacKay to 240 months of incarceration, (3) based on the penalty enhancement for distributing controlled substances resulting in death under the federal drug trafficking statute. (4)

Dr. MacKay's conduct "went far beyond a 'bad doctor' standard of care" (5): he chronically overscheduled patients, "sometimes seeing 100 patients in [fewer] than eight hours"; conducted no or limited physical examinations of his patients, "with entire [office] visits lasting between two to five minutes"; repeatedly refilled prescriptions early; and "reflexive[ly]" prescribed controlled substances without considering alternative methods of treatment. (6) In total, Dr. MacKay was convicted of thirty-seven counts of unlawful distribution of Schedule II and III controlled substances. (7)

His story is not unique. Dr. Paul Volkman ran a pain clinic in Ohio, where he was convicted of four counts of unlawful distribution of a controlled substance leading to death after four of his patients died of opioid overdoses due to prescriptions he wrote. (8) In fact, from 2003 to 2005, Dr. Volkman dispensed more oxycodone than any other physician in the country. (9) Dr. Stephen Schneider and his wife, nurse Linda Schneider, ran a pain management treatment facility in Kansas, at which, over the course of six years, sixty-eight of their patients died of drug overdoses. (10) Just last November, a grand jury in the Western District of New York returned a 166-count indictment against pain management doctor Eugene Gosy. (11) One hundred forty-four counts accused him of "unlawfully distributing and dispensing controlled substances[ ] other than for a legitimate medical purpose and not in the usual course of professional practice," and a separate count alleged that this conduct resulted in the death of six patients. (12)

As the opioid epidemic in the United States surges, death resulting from physician prescription of controlled substances is becoming more common. With it, criminal prosecution of physicians has increased; the Drug Enforcement Administration (DEA) has reported "a steady rise in successful criminal prosecutions of physicians, from just 15 convictions in 2003 to 43 in 2008." (13) In pursuing these cases, prosecutors utilize 21 U.S.C. [section] 841. Section 841(b) contains a penalty enhancement for cases where distribution of controlled substance(s) in violation of section 841(a) results in death or serious injury. (14) Under this enhancement, the statutory minimum incarceration period is twenty years. (15) Prior to 2014, the causation standard a prosecutor was required to prove to apply this increased penalty enhancement varied across jurisdictions. Some courts held that a contributing-factor standard was appropriate, (16) while others held that a showing of proximate cause was necessary. (17) Subsequently, the Supreme Court, in Burrage v. United States, determined that the penalty enhancement under section 841(b) is not applicable unless the defendant's use of the controlled substance was a "but-for" cause of the death or injury. (18)

Counts one and two in the case of Dr. MacKay alleged violations of 21 U.S.C. [section] 841(a)(1), (19) triggering the potential application of this penalty enhancement. Post-Burrage, Dr. MacKay was resentenced. (20) After declaring the jury instructions insufficient in light of Burrage, the district court vacated Dr. MacKay's enhanced penalty convictions on counts one and two and reduced his sentence from 240 to only thirty-six months. (21) While the Court's decision in Burrage does not wholly prevent the prosecution of physicians for misconduct or fully eliminate consequences for such behavior, it significantly limits the penalties applicable in cases where physician misconduct results in patient death. …

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