Adam M. Gershowitz

Volume 72, Issue 3, 871-918

Imagine that a medical board revokes a doctor’s license both because he has been peddling thousands of pills of opioids and also because he was caught with a few grams of cocaine. The doctor is a family physician, not a pain management specialist. Yet, during a one-year period he wrote more than 4,000 prescriptions for opioids—roughly eighteen scripts per day. Patients came from multiple states and from hundreds of miles away to get oxycodone prescriptions. And the doctor prescribed large quantities of opioids—up to 240 pills per month—to patients with no record of previously needing narcotic painkillers. Both federal and state law provides an option to charge the doctor as a drug dealer. When a physician writes a prescription for a controlled substance with no legitimate medical purpose, federal and state law considers it to be the same criminal offense as a street dealer selling drugs in a back alley. Prosecutors, however, did not charge the doctor with dealing opioids. They instead indicted him for possession of the small amount of cocaine and ignored the opioid distribution.

Prosecutors (and physicians) claim that there has been a massive crackdown on doctors for improper opioid prescribing. This Article challenges that claim by detailing dozens of recent cases in which state medical boards revoked doctors’ licenses for improper opioid prescribing but in which prosecutors never brought any criminal charges for drug dealing. After detailing the egregious conduct of dozens of opioid prescribers, this Article explains why prosecutors are reticent to bring drug distribution charges against doctors and offers a roadmap for reform.