John Kapoor, a former Insys Therapeutics executive, was convicted following a three-month trial.  The executives in that case were charged with using a speaker program to funnel cash and other perks to doctors who wrote many Subsys prescriptions. 

Kapoor is seeking review of the First Circuit’s decision to uphold his conviction.  Kapoor raises an important issue in his petition.  Specifically, Kapoor is asking the court to review whether a non-physician may be convicted of conspiring with physicians to prescribe controlled substances outside of the course of professional practice without regard to the non-physician’s understanding that the physician believed their prescribing to be within the usual course of professional practice.   

There is a split in the circuits concerning whether a physician’s good faith in prescribing controlled substances can be a defense.  The Ninth Circuit holds that a conviction “requires more than proof of a doctor’s intentional failure to adhere to the standards of care.” United States v. Feingold, 454 F.3d 1001, 1011 (9 Cir. 2006). The Ninth Circuit requires jurors to “look into a practitioner’s mind to determine whether he prescribed the pills for what he thought was a medical purpose or whether he was passing out the pills to anyone who asked for them.” Id. at 1008. The First and Seventh Circuits have adopted similar approaches. The Eleventh and Tenth Circuits, on the other hand, have adopted what essentially amounts to a medical malpractice standard, providing that the doctor’s good faith is irrelevant.  Criminal liability is established if the physician acted outside the scope of professional practice.  See United States v. Enmon, 686 Fed. Appx. 769, 773 (11th Cir. 2017); United States v. Khan, 989 F.3d 806, 825 (10th Cir. 2021).  This split is before the United States Supreme Court this term.  Kapoor argues that a related issue is presented in his case – whether non-physicians charged with physicians should have the availability of a good faith defense.  

This is an important issue to watch.  Non-physicians are routinely charged with conspiring with physicians who are alleged to have prescribed outside the course of professional practice.  Moreover, non-physicians are often charged with conspiring with physicians that make medical decisions that are outside the course of professional practice.  There is a fine line between medical malpractice and criminal liability in eyes of many courts.  This is a practice that needs to be scrutinized because non-physicians that do not have the benefit of medical training should not be held criminally liable for bad medical decisions made by physicians. 

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