We are continuing to witness inconsistent jury charges in the wake of the Supreme Court's groundbreaking decision late last term in Ruan v. United States. In Ruan, the Court made it clear that a health care professional cannot be convicted of illegal distribution of narcotics unless the government proves beyond a reasonable doubt that he intended to prescribe, or knew he was prescribing, narcotic drugs without "a legitimate medical  purpose…in the usual course of his professional practice." But the Court did not define "legitimate medical purpose" or "usual course of professional practice."

In United States v. Cristobal, which went to the jury on September 7, 2022, Judge Katherine Polk Failla, United States District Court Judge for the Southern District of New York, informed the jury that, "[t]he terms 'legitimate medical purpose' and 'usual course of of professional practice' means acting in accordance with a standard of medical practice generally recognized and accepted in the State of New York." This is inconsistent with several recent post-Ruan jury instructions in other federal districts, which explicitly inform the jury that there is no accepted definition of "legitimate medical purpose" and "usual course of professional practice."  For example, in United States v. Rahbarvafaei, tried in the Central District of California, the jury was instructed that, "[t]here are no specific guidelines in the law defining what is the usual course of professional practice or defining a legitimate medical purpose." Rahbarvafaei was acquitted on all counts. Cristobal, a licensed nurse practitioner, was convicted on three of eight counts.

The Cristobal offense instruction tells the jury in effect that an intentional violation of the standard of care in the prescribing of drugs is a criminal offense. In the Ninth Circuit, however, it has long been the law that an intentional violation of the standard of care is not alone enough to convict a physician defendant in a narcotics distribution case. 

Stay tuned. Undoubtedly, more inconsistences and confusion await us and the Supreme Court will need to step in again soon to provide needed clarifiaction.

(wisenberg)