On May 11, 2010 The SJC decided when a doctors “dispense” of medication can become “distribute” in violation of 94c 34j in COMMONWEALTH vs. MICHAEL R. BROWN 456 Mass. 708 (2010).
The court in reviewing the facts stated “Michael R. Brown, a physician, was indicted on multiple charges of illegally distributing or dispensing controlled substances in violation of G. L. c. 94C, §§ 32A (a) (class B substance) and 32B (a) (class C substance); submitting false medical claims in violation of G. L. c. 118E, § 40 (2); larceny of an amount in excess of $250 in violation of G. L. c. 266, § 30 (1); and possession of a controlled substance in violation of G. L. c. 94C, § 34. The indictments charging the defendant with submitting false medical claims and larceny, along with the indictments charging violations of § 32A (a), were tried to a jury; at trial, the Commonwealth elected to proceed on the theory that the defendant had unlawfully “dispensed” rather than “distributed” a Class B controlled substance under § 32A (a). The indictment charging a violation of § 32B (a) was the subject of a jury-waived trial, at which no such election was made. The defendant was convicted at both trials. The cases were consolidated on appeal, and were affirmed by a divided panel of the Appeals Court. Commonwealthv. Brown, 74 Mass. App. Ct. 75, 85 (2009).
The jury trial centered on prescriptions for pain-relieving opiates, all Class B controlled substances, G. L. c. 94C, § 31, written by the defendant for seven patients. Admitted in evidence at the trial was a statement the defendant had made to members of the Attorney General’s Medicaid fraud control unit during the investigation, to the effect that he followed a responsible standard of care with regard to patients receiving such prescriptions. He explained that his practice was to test his patients for indications of illegal substance abuse, and that he would intervene or cease prescribing pain-relieving opiates when those tests returned positive for illegal drugs. However, in the cases of the seven patients at issue, the evidence was that the defendant did not heed his own standards, and continued to prescribe opiates to the patients — sometimes in increasing dosages — despite laboratory results revealing them to be illegal drug users. Those same laboratory results also revealed that the patients were not taking the opiates prescribed to them by the defendant. Yet, the defendant continued to issue new prescriptions to them. Based on this evidence, the Commonwealth produced an expert who testified that the prescriptions written by the defendant for these patients were not issued in good faith and served no legitimate medical purpose.
3. “Dispensing” and “distributing” controlled substances. The other question in this case — when does a physician “dispense” a controlled substance in violation of G. L. c. 94C, the drug statutes — is easily stated, but as the Appeals Court recognized, its resolution is far from simple. It is, therefore, helpful to set out the general structure of G. L. c. 94C.
Just as the drug statutes do not operate as a blanket prohibition against prescribing controlled substances, neither does the registration scheme immunize registered physicians from prosecution for unlawful dispensing or distribution. If a physician writes a prescription that does not conform to the requirements of the Act, he may be penalized.
Most relevant here is G. L. c. 94C, § 19, which we have concluded serves two important functions relating to the criminal liability of physicians arising out of prescribing controlled substances. First, it acts as an exemption from criminal liability under the drug statutes. So long as a physician (who is duly registered) issues a prescription for a “legitimate medical purpose” and “in the usual course of his professional practice,” the act of conveying a controlled substance to a patient is not prohibited. However, the issuance of an invalid prescription is an unauthorized act, thus a “physician who issues a prescription not intending to treat a patient’s condition in the usual course of his practice of medicine . . . violates § 32.” Comins,supra at 232. See Commonwealth v. Kobrin, supra at 597 (“Physicians who issue invalid prescriptions under G. L. c. 94C, § 19 [a], then, are those who, in essence, act not as physicians when they write such prescriptions but act instead as ‘pushers’ “). In short, the failure to issue a prescription that is “valid” under § 19 opens the door to prosecution under the drug statutes.
In addition to its service as the gateway to liability under the drug statutes for physicians, § 19 contains its own sanction: A physician who issues an invalid prescription “shall be subject to the penalties provided by [G. L. c. 94C, §§ 32-32H].” The term “penalties” is properly understood as a reference to the punishments available under §§ 32-32H, rather than the enumerated acts of distributing or dispensing prohibited in those sections. Accordingly, the availability of the § 19 prohibition makes it possible to prosecute physicians who write invalid prescriptions under that section alone, without relying on the distributing or dispensing language of the drug statutes. Commonwealth v. Brown, 74 Mass. App. Ct. 75, 87 n.4(2009) (Mills, J., concurring in part and dissenting in part). Cf. Commonwealth v. Pike, 430 Mass. 317, 318 (1999) (psychiatrist indicted and convicted under G. L. c. 94C, § 19, as well as drug statutes). That is, a physician writing an “order purporting to be a prescription” but not issued for a legitimate medical purpose in the usual course of professional treatment, violates § 19 and is subject to the penalties in the drug statutes that correspond to the class of the drug purportedly prescribed. This point bears emphasizing: without question, the Act prohibits the conduct of the defendant in this case. The Commonwealth’s decision to seek indictments under the drug statutes for dispensing or distributing was unnecessary.
We turn now to the issue at hand: having decided to pursue convictions of distributing or dispensing under the drug statutes, and subsequently having chosen (at the jury trial) to proceed only on the theory that the defendant “dispensed” controlled substances, what was the Commonwealth required to prove?
b. Prosecution under the drug statutes. As a preliminary matter, we think that the decision to proceed under the drug statutes, rather than G. L. c. 94C, § 19, requires the Commonwealth to prove that a physician engaged in at least one of the prohibited acts enumerated in that section: that is, either distributing or dispensing a controlled substance. The language of the statute requires it. The act of “dispensing” is different from the act of “distributing” — indeed, to “distribute” is defined negatively as “to deliver other than by administering or dispensing.” G. L. c. 94C, § 1. In addition, as we have already discussed, § 19 already prohibits the issuance of an invalid prescription by a registered physician, which suggests that the distributing or dispensing language in the drug statutes targets different categories of conduct. Finally, despite several statements suggestive of the contrary, we have never held that the Commonwealth may rest its case under the drug statutes solely on the elements of § 19.
c. “Dispensing.” We turn now to what constitutes unlawful “dispensing” by a physician under the drug statutes. The Commonwealth contends that proof that a physician violated § 19 by issuing an invalid prescription is sufficient to sustain a conviction for unlawfully dispensing a controlled substance. After carefully studying the language and structure of the Act, as well as decisions interpreting its Federal counterpart, the Appeals Court agreed, holding that the elements of unlawful dispensing by a physician under the drug statutes are set out in § 19. Commonwealth v. Brown, supra at 83-84. The defendant disagrees. See id. at 85-86 (Mills, J., concurring in part and dissenting in part). Having already established that the threshold element of unlawful dispensing is the issuance of an invalid prescription under § 19, i.e., one issued without a legitimate medical purpose and not in the usual course of the physician’s professional practice, Comins, supra at 232, the dispute now turns on the definition of “dispense.”
To “[d]ispense” is defined as “to deliver . . . to an ultimate user . . . by a practitioner or pursuant to the order of a practitioner, including the prescribing . . . of a controlled substance” (emphasis added). G. L. c. 94C, § 1. An “[u]ltimate user” is one who “lawfully possesses a controlled substance for his own use or for the use of a member of his household.” Id. Thus, fidelity to the definition of “dispensing” requires proof that delivery was made to an “ultimate user,” i.e., one who “lawfully possesses” the prescribed substance for his own use or the use of a member of his household. See Perry, supra at 812;Comins, supra at 231-232. It is here that we confront a near void of precedent and must interpret the language and structure of the Act with fresh eyes.
The primary trait of an “ultimate user” is that he has lawful possession of a controlled substance. An analysis of the Act as a whole suggests that lawful possession is possession that is not illegal, or, more specifically, possession that is not prohibited by G. L. c. 94C, § 34. Under G. L. c. 94C, § 34, a person’s possession of a controlled substance is lawful only if the “substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner while acting in the course of his professional practice” (emphasis added). This is a clear reference to § 19, and accordingly a “validprescription” is one issued for a legitimate medical purpose in the course of usual professional practice. Using § 34 to define lawful possession then, would mean that a patient who intentionally receives a prescription without a legitimate medical purpose receives an “invalid” prescription and, consequently, does not lawfully possess the substance. As such, once it is determined that a physician issued an invalid prescription, the recipient cannot be in lawful possession. In turn, the recipient cannot be an “ultimate user,” and the physician cannot have “dispensed” the substance; rather, he has “distributed” it.
This approach is not without its contradictions. Relying on § 34 to evaluate the lawfulness of an ultimate user’s possession creates a scheme under which a physician cannot be guilty of unlawfully “dispensing” under the drug statutes even though the definition of “dispense” expressly includes “prescribing.” [FN14] *722 Thus, to “distribute,” which is defined as the negative of to “dispense,” would include an act (prescribing) that is expressly included in the definition of “dispense.” Moreover, this approach would contradict our prior statements, noted in note 12, supra, to the effect that the act of issuing an invalid prescription satisfies the “essential elements of the crime of unlawful dispensing of a controlled substance” (emphasis added). Commonwealth v. Chatfield-Taylor, 399 Mass. 1, 4 (1987). See Commonwealth v. Pike, 430 Mass. 317, 318 (1999) (upholding dispensing convictions where evidence showed prescription written in violation of § 19); Perry, supra at 812 & n.3 (physician criminal liability requires unauthorized prescribing); Comins, supra at 226 (physician dispenses when issuing unlawful prescription). Despite these problems, this approach presents the least awkward interpretive alternative, especially in light of the Act’s over-all structure.
Scrutiny of the structure of the Act confirms that a physician who violates § 19 by issuing an invalid prescription to a person seeking a controlled substance for illicit purposes has unlawfully “distributed” a controlled substance. In other words, a physician “dispenses” when appropriately acting as a physician, and “distributes” when acting as a drug dealer.
In summary, our conclusions are as follows. When a physician, for no legitimate medical purpose and not in the usual *725 course of his professional practice, delivers a controlled substance by issuing a prescription to a patient seeking the substance for illicit ends, the Commonwealth may prosecute the physician for issuing an invalid prescription, G. L. c. 94C, § 19; or for unlawfully distributing the substance, G. L. c. 94C, §§ 32-32H. The sentence for a conviction under either approach will be set out in the appropriate provision of §§ 32-32H, depending on the identity of the substance delivered. In addition, the Commonwealth may prosecute the patient for unlawful possession provided the patient possessed the requisite mental state. G. L. c. 94C, § 34. If the physician issued the prescription for a legitimate medical purpose, or believed that he did so because his patient deceived him, G. L. c. 94C, § 33 (b), the physician has not “distributed” under the drug statutes.
In this case, the evidence at the jury trial overwhelmingly established that the defendant, a registered physician, issued prescriptions to patients without a legitimate medical purpose. Although it was essential for the Commonwealth to establish that the defendant also engaged in conduct prohibited by the drug statutes, namely dispensing or distributing, we have concluded that, as it occurred in this case, the act of issuing an unlawful prescription is the act of unlawful distribution. Here, although phrased as unlawfully dispensing a controlled substance, the judge’s instructions on the elements of the crime matched the elements of unlawful distribution. No mention was made of the fact that “dispensing” requires delivery to an “ultimate user.” Indeed, the evidence established that the defendant’s patients were not ultimate users at all, their possession being unlawful under G. L. c. 94C, § 34. To the jury, then, it made no difference to which verb in the indictment their attention was drawn. Considering only the elements necessary for the crime of unlawful distribution, they convicted the defendant. Therefore, we can say with confidence that “the judgment was not substantially swayed by the error,” and the defendant’s convictions stand, albeit on the theory that he unlawfully distributed controlled substances. Commonwealth v.Flebotte, supra. Cf. Commonwealth v. Robinson, 26 Mass. App. Ct. 441, 442, 445-446 (1988) (correcting conviction where evidence established defendant was guilty of crime containing fewer elements than crime of which he was convicted).”
This is an outstanding case for determining whether a Doctor “Dispensed” or “Distributed” a drug. In the last 15 years with the increase in prescription drug addictions and illegal sales The major question has risen, “Are certain Doctors who knowingly prescribe medications to people who seek them solely for the “High” they provide nothing more than simple drug dealers?”. The answer according to this case is “yes”.
Attorney Ronald A. Sellon