Unlawful Practice of Medicine (Part 4)

The Court continued: New Jersey physicians have been criminally prosecuted as well as administratively penalized for prescribing unnecessary CDS. Indeed, physicians are regularly investigated by the DEA and prosecuted in federal court for prescribing CDS that is not medically necessary. The fact they were licensed physicians did not prevent criminal prosecution. See, e.g., United States v. Maynard, 278 Fed. Appx. 214, 218 (3d Cir. 2008) (“Physicians are subject to criminal liability ‘when their activities fall outside the usual course of professional practice.'” (quoting Moore, 423 U.S. at 124 )); United States v. Tighe, 551 F.2d 18, 21 (3d Cir. 1977) (noting that “by placing a prescription for a controlled substance, issued outside of the usual course of medical practice, in the hands of an ultimate user a physician completes” a criminal act); United States v. Brandenburg, 155 F.2d 110, 111 (3d Cir. 1946) (finding that “under the guise of ‘treating’ a patient a physician may not by issuing prescriptions make it possible for drugs to be peddled or for known addicts merely to satisfy their craving” (citing United States v. Behrman (1922).

Accordingly, we reject Campione’s argument that he cannot be guilty of distribution of CDS because he was a licensed physician assistant, who was registered to prescribe CDS to patients. This, however, does not end our inquiry.

Although Campione was permitted to prescribe CDS, he may only do so in good faith when the CDS is medically necessary and appropriate. CDS prescriptions issued to substance abusing patients who do not have a legitimate medical need for such medication subjects the physician assistant to potential criminal prosecution and conviction. Determination of the medical necessity and appropriateness of the prescription is a fact question to be considered by the grand and petit jurors. An indicted charge should not be dismissed if there is “some evidence” that the CDS prescription was not issued in good faith because it was medically unnecessary or inappropriate.

Here is where the caselaw favors the State with regard to indictments. It is a very rare case where there is not “some evidence” to support the proposed charge, especially when the case law requires that the alleged facts be construed in the light most favorable to the State.