Drug prosecutions involving physicians who are otherwise permitted to prescribe controlled substances present unique challenges for prosecutors and defense counsel. Defendant physicians frequently argue they were acting in good faith when they prescribed controlled substances to their patients. Unfortunately, recent Sixth Circuit caselaw made "good faith" defenses unavailable to such defendants. The Court, in its recently published opinion in United States v. Anderson, recognizes that recent caselaw from the United States Supreme Court changed changed the landscape in physician prosecutions.
Dr. Roger Anderson was a licensed physician in Marietta, Ohio, who was authorized to prescribe controlled substances. According to federal investigators, Anderson prescribed controlled substances to many of his patients without a "legitimate medical purpose" over an approximately one-year period. In March 2019, a federal grand jury issued an indictment charging him with one count of conspiring to distribute controlled substances in violation of 21 U.S.C. § 846, nine counts of unlawful distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1), one count of conspiracy to commit healthcare fraud in violation of 18 U.S.C. § 1349, and three counts of healthcare fraud in violation of 18 U.S.C. § 1347.
To prove Anderson wrote prescriptions without a "legitimate medial purpose," the Government enlisted the aid of dozens of witnesses, including Dr. Timothy King, who it sought expert testimony. Prior to his trial, the District Court rejected Anderson's Daubert challenge to the admission of Dr. King's testimony. Anderson then proceeded to trial.
During the District Court's charge conference, the Government objected to a proposed good faith instruction that would have instructed the jury to acquit Anderson if it found he "acted in accordance with what he believed to be proper medical practice." In objecting to the proposed instruction, the Government cited the Sixth Circuit's opinion in United States v. Godofsky, 943 F.3d 1011 (6th Cir. 2019), which held that a physician’s “subjective good faith” was irrelevant in cases brought under 21 U.S.C. §§ 841. The District Court agreed, finding that Godofsky controlled and that, in any case, Anderson had not presented sufficient evidence regarding his own good faith. The jury subsequently convicted Anderson on all counts.
On appeal, Anderson challenged not only the District Court's decision not to submit a good faith instruction to the jury, but he also challenged its decision to admit Dr. King's testimony and the sufficiency of the evidence against him. The Court affirmed.
Addressing Anderson's claim regarding the good faith jury instruction, the Court noted that the United States Supreme Court's decision in Ruan v. United States, 142 S. Ct. 2370 (2022) -- issued after briefing had concluded in the case -- abrogated Godofsky and made defendant's "subjective good faith" relevant to charges against physicians under § 841(a). This did not affect the outcome in Anderson's case, however, because the Court held the District Court's instructions complied with Ruan because they referred to the defendant's knowledge, his or her deliberate ignorance, and whether the defendant knew the prescriptions were dispensed illegitimately. The instructions, the Court concluded, thus encompassed a defendant's good faith.
The Court next addressed Anderson's argument that the District Court abused its discretion in admitting Dr. King's testimony. Specifically, Anderson argued the District Court erred because Dr. King did not disclose his methodology in his reports, that his methodology had not been peer reviewed, and that his expert opinion was "scientific guesswork." The Court rejected each of these arguments, noting the record supported the District Court's findings regarding the reliability of Dr. King's testimony.
Finally, Anderson challenged the sufficiency of the evidence supporting his conviction for conspiracy to distribute controlled substances, arguing the evidence showed he committed "mere malpractice," and, at worst, "sloppy documentation", and that he prescribed controlled substances to treat what he believed were legitimate medical complaints. The District Court rejected these arguments, holding the Government presented sufficient evidence Anderson did not have a "legitimate medical purpose" for prescribing the controlled substances at issue in the case.
The Court also rejected Anderson's challenge to his conviction for health care fraud. Specifically, Anderson argued the evidence was insufficient because he did not directly bill Medicare and Medicaid, he did not know who paid the prescriptions, and because he did not personally profit from the prescription reimbursements. The Court held it was not necessary for the Government to prove Anderson personally billed Medicare or Medicaid, and that, regardless, the Government proved he knew both programs paid for the prescriptions. Finally, the Court held it was not necessary for the Government to prove Anderson profited from his scheme.
Judge Helene White issued an opinion concurring in part but dissenting in that portion of the majority opinion concluding the District Court's jury instructions comported with Ruan. Judge White argued the District Court should have submitted Anderson's good faith instruction to the jury.
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