Document Type

Article

Publication Date

2009

Keywords

physicians, prosecuting, doctors, prosecutions

Abstract

In an escalating phase of our country’s war on drugs, doctors treating patients in pain are being prosecuted for drug trafficking under the Controlled Substances Act. While doctors surely can be guilty of drug trafficking when they sell drugs for money, lately some doctors have been prosecuted for violations of a statute that requires knowingly distributing or dispensing controlled substances in an unauthorized manner for simply being willfully blind to the fact that their patients were reselling the drugs. While willful blindness may be an apt substitute for knowledge in the traditional drug courier scenario, doctors in these cases are often willfully blind for good reasons. The doctor’s professional role obligations – of loyalty and confidentiality – may limit the doctor’s ability to investigate her patient and direct the doctor to adopt an attitude of trust. If doctors treating patients in pain rightfully trust their patients, then the doctor’s willful blindness doesn’t make her culpable. This conclusion is important for two reasons. First, it illustrates something overlooked about a philosophically complex area of criminal law theory. This analysis helps to answer the question: when is the willfully blind actor equally culpable as the knowing actor. Second, the discussion in this paper shows that recent prosecutions of doctors which rely on willful blindness as a substitute for knowledge erroneously hold these doctors criminally responsible for conduct that is morally justified and as such commit a grave moral wrong.

Disciplines

Bioethics and Medical Ethics | Health Law

Recommended Citation

16 George Mason Law Review 701 (2009).