Post Ruan/Kahn SCOTUS decision

Here is the information for medical professionals to consider post Ruan/Kahn SCOTUS decision provided by Physicians Against Abuse (PAA) at their zoom meeting on Aug 9, 2022

I was present for the first 30 minutes, but then the hostess accidentally bumped me out and I wasn’t able to get back on until the last 30 minutes, and then only by phone. The last part of the meeting was conducted by the lawyer, and I really didn’t learn much except for anyone with questions about their case would have to be looked at individually. I then asked other doctors who were present for the entire 1 ½ hours, and they didn’t give me any other useful information from the lawyer’s presentation.

The beginning PowerPoint presentation had some helpful information which is summarized here:

There are several categories of medical professionals who are being or have been attacked for their medical practice. The categories are listed by I, II, III, etc.  What the professional should do to benefit from the Ruan/Kahn decision is listed under the category as A, B, C, etc.

So here are PAA’s suggestions, quickly summarized, as she moved through the PowerPoint fast. Keep in mind that PAA is not a legal firm, so these are only suggestions and not something you can claim as legal advice, from them, or from me.

I.  Pre-conviction indictment phase
      A. Modify jury instructions
B. Educate judge through motions in limine. (motions filed pre-trial to educate the judge.)

II. Post-guilty verdict, before direct appeal
      A. Rule 33 must be within 3 years

Rule 33. New Trial

(a) Defendant’s Motion. Upon the defendant’s motion, the court may vacate any judgement and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.

(b) Time to File
(1) Newly Discovered Evidence.  Any motion for a new trial grounded on newly discovered evidence must be filed         within 3 years after the verdict or finding of guilty.  If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.
(2) Other Grounds.  Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.

III. Direct appeal in progress
      A. Motion to relinquish to district court then
B. Rule 33

IV. Post conviction—2255 in process or due to be filed
     A. Incorporate the absence of mens rea and the shifting burden under the old standard

V. Way past 2255
     A. Successive 2255 if outside of the 3 year time frame for new trial
B. If not, rule 33 can still be pursued
C. Successive 2255 requires permission from US Court of appeals

VI. Ruan Aftermath on Medical board proceedings
     A. If license has been revoked: constitutional challenge in state court letter to reopen case/request hearing
B. If license is suspended: letter to reopen case/request hearing
C. Medical board statutes: reviewed individually
D. Common to all state medical boards for immediate action: file constitutional challenge

The Ruan/Kahn decision will be a blow to the government using expert witnesses on standard of care as a means of conviction

During the end of the meeting, questions came up from the audience as to whether Ruan/Kahn can be applied to healthcare fraud cases. The lawyer said yes, that intent is a part of 18 U. S. § 1347, as you see here:

18 U.S. Code § 1347 – Health care fraud

(a) Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program,
in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.

However, there is a (b) in that statute that states:

(b) With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section.

So my guess is that there will have to be more cases before SCOTUS before we will have security in that statement.

I hope this gives you an idea of what needs to be done to clear your name and conviction for prescribing controlled drugs in your practice. Not being a legal authority, I’m afraid I can’t answer any specific questions for you. You would need to take them to a legal expert.  You should be able to approach PAA for a consultation if you think you would benefit from any legal action.  Their website is http://www.physiciansagainstabuse.com/ where you can review their services and contact them if interested.

If anyone has a lawyer or firm they recommend for these proceedings, please let us know. Interested law firms are welcome to put a page on our Defense Attorneys section of Doctorsofcourage.