Partner Ryan L. O’Neill, a former prosecutor who practices in Riker Danzig’s White Collar Criminal Defense and Investigations Practice, authored an article for the New Jersey Law Journal entitled “’Good-Faith’ Defense in CSA Prosecutions: An Invitation to Rethink Strategy.” The Commentary piece, published on September 12, 2022, discusses the burden on defendant-physicians to provide evidence that they prescribed addictive narcotics in good faith in order to trigger the government’s burden to prove criminal intent beyond a reasonable doubt. Ryan’s commentary discusses the changes in the way the Department of Justice is using the Controlled Substances Act to prosecute physicians for allegedly prescribing drugs outside the professional standards of care, changes which have arisen in the wake of the U.S. Supreme Court case Ruan v. United States.
Ryan emphasizes the need for counsel to retain good experts with specific expertise in the physician’s field of medicine when defending physician diversion cases, and the need for evidence to demonstrate that the physician was prescribing in good faith. She notes that the standard is not clear as to how much evidence is enough to establish good faith intent, but that any evidence that shows that the physician, for better or worse, “reasonably and sincerely believed his or her prescriptions were legitimate and medically necessary” could be potentially exculpatory, in her view.
She also addresses the new wrinkle of diversion cases that are mixed with health care fraud or kickbacks, which raises the question of whether the two issues can be successfully separated to maintain the defense of good faith even in light of other inappropriate conduct.
Finally, she says that Ruan will likely expand the government’s Brady obligations because “evidence of a physician’s subjective intent is now a potential affirmative defense.”
To read the full commentary, go to ‘Good-Faith’ Defense in CSA Prosecutions: An Invitation To Rethink Strategy.
Ryan Lee O'Neill