Risks Of Conflating Civil And Criminal Standards In Prosecution

Government’s medical experts did not conflate the civil malpractice standard with the criminal standard under the Controlled Substances Act, in United States v. Chube, 538 F.3d 693 (7th Cir. Aug. 15, 2008) (Nos. 06-3674 & 06-3675)

Potential confusion can arise where an expert comes close to testifying about a civil standard in a criminal case. The risk is that the jury will convict a defendant under a civil and not criminal standard. For example, one civil standard concerns the standard of care. The defense raised this issue in a recent prosecution of two doctors who were charged with the unlawful distribution of OxyContin, used to treat chronic pain, to patients.

During their trial, two government medical experts testified about their review of the patient records. The experts testified that the prescriptions were “not consistent with the usual course of medical practice.” The defense objected that the experts conflated “the standard of care applicable in a civil malpractice suit” with the criminal standard under the Controlled Substances Act (CSA) which focuses on whether “the prescription was written without a legitimate medical purpose and outside the scope of professional practice.” Chube, 538 F.3d at 695. The defendants were convicted on at least one count but acquitted on most counts.

While some testimony came close, and other portions could have been clearer, the circuit agreed with the trial court that the expert could opine whether the prescription was based on a legitimate medical purpose. The circuit noted that the government was required to show that the defendant “knowingly and intentionally acted ‘outside the course of professional practice’ and without ‘a legitimate medical purpose.’” Chube, 538 F.3d at 697. The circuit found no error and noted under the CSA, “it is impossible sensibly to discuss the question whether a physician was acting outside the usual course of professional practice and without a legitimate medical purpose without mentioning the usual standard of care.” Chube, 538 F.3d 698. The trial court clarified that the standard of care was distinct from “legality.”

In discussing this issue, the Seventh Circuit favorably highlighted another prosecution of doctors in which the trial court distinguished between the civil and criminal standards. In that case, the trial court instructed the jury:

“There has been some mention ... of the standard of care. I'm not so sure the word[ ] malpractice ha[s] not been used. Those words relate to civil actions. When you see a doctor, as a patient, that doctor must treat you in a way so as to meet the standard of care that physicians of similar training would have given you under the same or similar circumstances.... That's not what we're talking about. We're not talking about these physicians acting better or worse than other physicians. We're talking about whether or not these physicians prescribed a controlled substance outside the bounds of their professional medical practice.”

United States v. Alerre, 430 F.3d 681, 687 n.5 (4th Cir. 2005).

Where there is a risk that civil and criminal standards may be confused in a criminal case, the Alerre case provides guidance on steps that may be taken to avoid these problems.

Federal Rules of Evidence