Why the Ruan Case Won’t Protect Doctors From Prosecution
/By Dr. Joseph Parker
Doctors trying to save lives and help pain patients are regularly being sent to prison for prescribing opioids. And despite last year’s Supreme Court ruling in the Ruan case, that’s not changing. Here’s why.
First, it’s important to know what you are up against. When the US federal government goes after a doctor or anyone else, they face a streamlined conviction machine. Since the time of Ronald Reagan (who I voted for), the rights of an American citizen to challenge the charges against them or try to overturn an unjust conviction have been eroded.
Then came President Bill Clinton (I voted for him too), who signed into law the Antiterrorism and Effective Death Penalty Act, doing more to ensure that the government can imprison the innocent than any other president since the Civil War.
At the founding of this nation, it was recognized that governments are prone to lock up people they don’t like, finding some legal pretext to justify their actions. To guard against this, the Constitution and Bill of Rights were adopted to limit the powers of the federal government.
Originally, there was only one federal crime: an act of treason. This crime was much more limited than the British version had been, when wandering over onto the King’s hunting grounds was considered treason. In the American version, you had to wage war against the United States or give aid and comfort to its enemies during a time of war.
Then John Adams, the second president of the United States, made sedition a federal crime. Since then, so many federal laws have been added that government itself cannot tell you exactly how many or what they are.
That’s not counting all of the rules and regulations enforced by federal law enforcement, as if they were the law. Locked up is locked up, after all. Today the land of the free incarcerates more of its citizens than any other nation. Not only that, but the sentences have become draconian.
There is no nation on earth today where the liberty of a citizen has less value than in America. The US incarcerates an average of 629 people for every 100,000 citizens. The next closest nations are Rwanda, Turkmenistan, El Salvador and Cuba. China and Russia don’t even make the Top 10.
Believe it or not, there are 37 states in the US that beat Cuba’s incarceration rate of 510 prisoners, with Louisiana coming in at a mind numbing 1,341.
All of those inmates did not end up in prison by accident. Looking at 2020 numbers, there were about 1,879 criminal cases heard in federal court. Of those, about 90% of the accused plead guilty without even going to trial. Is that because the US government is absolutely right 90% of the time? I am cautiously skeptical. Only 0.04% of cases -- 4 out of 1,000 – resulted in acquittal. Those are not good odds.
In Ruan v. United States, Dr. Xiulu Ruan appealed his conviction for prescribing opioids in an “unauthorized manner.” In a stunning unanimous verdict, the Supreme Court justices repeated what they said in 1925 in Linder v. United States, and then again in 2006 in Gonzales v. Oregon: the federal government cannot dictate the practice of medicine and a doctor can only be prosecuted if they knew what they were doing was wrong.
As has happened in the past, US law enforcement doesn’t let something like a Supreme Court ruling slow them down. They are completely ignoring the Ruan ruling by arguing something called “willful blindness.” What was the doctor willfully blind to? To whatever opinion the government’s expert witness feels like arguing is the “usual practice of medicine” and “a legitimate medical purpose.”
Even though the Supreme Court made clear that only individual states can regulate the practice of medicine, the government’s hired expert does not have to come from your state or even be familiar with your state’s laws regarding the practice of medicine.
In effect, the DEA argues that there is a national practice of medicine that must be followed. Where do they draw these medical practice standards when there is no such thing as a federal medical license? From medical textbooks like the "Principles and Practices of Pain Medicine"? No. From the teachings of national medical organizations like the American Academy of Pain Medicine or the American Society of Addiction Medicine? No again.
The teachings from those sources are not allowed in court, unless you can get one of the original authors to come testify for you. And sometimes, not even then. The chapter on avoiding addiction in pain management from the above textbook was written by Dr. Alan Wartenberg. Despite his advanced years, Dr. Wartenberg came to my trial to testify for me. But he was not allowed to be considered as an expert in pain medicine, because he was “only” an addiction specialist.
This is nothing compared to what happened to Dr. William Bauer of Ohio. A dozen pharmacists, doctors, and scientists were willing to testify on his behalf, and all of them were disqualified by the court. But the government’s “experts” in pain medicine can testify about almost anything, including addiction and even chronic cough.
The government does not convict you by proving you are guilty, they convict you by smearing you publicly long before you get to trial, and then making sure that the jury does not have access to the truth, by disqualifying experts, withholding favorable evidence, allowing false testimony, and making false statements to the jury.
And remember, Dr. Ruan “won” at the Supreme Court. But he’s still in prison.
Good luck and be prepared. Ruan will not save you.
Joseph Parker, MD, is Chief Science Officer and Operations Officer at Advanced Research Concepts, a company developing solutions to the challenges of space travel and space-related medical issues. In clinical practice, Dr. Parker specialized in emergency medicine and served as Director of Emergency Medicine at two hospitals. Prior to that, he had a distinguished career in the U.S. Marines and Air Force.
In 2022, a federal jury convicted Dr. Parker on two counts of unlawful opioid prescribing. He has filed an appeal as he awaits sentencing.
