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Abstract

In response to the devastating impact of the opioid crisis, the Department of Justice has in recent years launched an aggressive crackdown on what it characterizes as “fraudulent prescribers” of controlled substances. Against this backdrop, physicians, prosecutors, and defense attorneys face a number of issues. First, there is a lingering circuit court split on the issue of whether indictments against physicians and other medical professionals for illegal controlled substance distribution must allege that the physician acted “outside the usual course of professional practice and without a legitimate medical purpose.” I argue that acting without a legitimate medical purpose is an element of narcotics distribution that must be alleged in indictments for both constitutional and policy reasons. Next, there is ambiguity as to what type of conduct is considered to have no legitimate medical purpose, and the line between poor medical practice and criminal conduct is ill-defined. I argue that the statutory scheme for prosecuting physicians is vague and ineffective at providing guidance to doctors, juries, judges, and attorneys. Finally, there is the broader question of whether physicians should be the target of limited prosecutorial funds, or whether the government should instead focus on the pharmaceutical companies whose actions lie at the heart of the opioid crisis. This comment explores the legal options for holding drug companies accountable for their role in the crisis, and argues that these options are more effective than prosecutions of individual physicians.

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