An H&S 11153 Violation Can Be Used to Deem a Physician a Criminal Doctor

Politics control medical decisions and California Health & Safety Code section 11153 can be used to deem a doctor a criminal physician simply because a prosecutor has a negative view of his/her prescription practices.

In California, the prescribing of controlled substances—such as opioids (painkillers like oxycodone or hydrocodone), sedatives (like benzodiazepines), and stimulants (like Adderall)—is heavily regulated to prevent abuse, addiction, and diversion. One key law governing this is California Health and Safety Code § 11153 (HSC § 11153), which mandates that prescriptions for controlled substances must serve a legitimate medical purpose and be issued in the usual course of professional practice.

Violations of this section can lead to serious criminal charges for physicians and other prescribers, especially in the context of the ongoing opioid crisis and rising concerns over stimulant misuse. This blog post explores the law, its implications, common scenarios leading to charges, penalties, and potential defense strategies.

What Does Health & Safety Code § 11153 Prohibit?

The core of HSC § 11153(a) states:

A prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice.

This means:

The prescription must address a genuine medical need, supported by appropriate examination, diagnosis, and documentation.

It must align with standard medical practices—not be issued outside the prescriber's normal scope or based on inadequate evaluation.  In other words if a doctor is a physician drug dealer this statute easily applies.  But if the doctor has a medical judgment that differs from the mainstream currently accepted view regarding pain killer rx's, he/she can be deemed a criminal doctor based upon a medical assessment disagreement.

Additionally, the law explicitly prohibits issuing prescriptions to maintain an addict's customary use unless it's part of an authorized treatment program (e.g., for detoxification or maintenance).  This means that doctors who prescribe pain killers should be pushing their patients to taper to less effective pain control and consider referrals to outside programs for usage control.   There is often a presumption that the doctor is overprescribing and the patient overusing.

The responsibility falls primarily on the prescriber, though pharmacists share a corresponding duty to verify legitimacy before dispensing.  This rule pits the pharmacist against the doctor and often leads to pharmacists reporting doctors to the medical board.  In our experience more than 1/2 of the drug related criminal charges arise from reporting by a pharmacist.

Related laws, such as HSC § 11154 (prescribing without treatment) and HSC § 11156 (prescribing to known addicts), often overlap and can result in compounded charges.

Common Scenarios Leading to Charges

Charges under HSC § 11153 often arise when prescribers are accused of "overprescribing" or issuing scripts without proper justification. Examples include:

Prescribing high doses or large quantities of opioids for chronic pain without documented ongoing assessments, alternative treatments, or risk mitigation (e.g., urine screens or pain contracts)

Issuing stimulants like Adderall for ADHD without thorough evaluation or when patients don't meet diagnostic criteria.

"Pill mill" operations where clinics prioritize volume over care, leading to prescriptions for cash-paying patients with minimal exams.

Cases where patients overdose or divert drugs, triggering investigations that scrutinize prior prescriptions.

In recent years, scrutiny has intensified due to tools like California's CURES (Controlled Substance Utilization Review and Evaluation System) database, which tracks prescriptions and flags potential red flags like doctor shopping or high-volume prescribing.

Notable recent enforcement actions include:

Investigations into telehealth platforms accused of loosely prescribing stimulants (e.g., Adderall schemes involving millions in revenue).

Arrests of physicians for alleged opioid schemes, often tied to patient overdoses or fraud.

If a patient overdoses, prosecutors may argue the prescription lacked legitimacy, even if the prescriber acted in good faith.

Penalties for Violations

A knowing violation of HSC § 11153 is typically a wobbler (chargeable as misdemeanor or felony), with penalties including:

Up to 1 year in county jail (misdemeanor) or state prison under Penal Code § 1170(h) (felony).

Fines up to $20,000.

Both imprisonment and fines.

A loss of a medical license will follow as the medical board strongly pursues drug prescription cases.

For certain schedules or aggravating factors (e.g., involving narcotics or minors), enhanced penalties apply under related sections like HSC § 11371.

Beyond criminal sanctions and medical board sanctions, consequences often include:

• Loss of DEA registration, preventing future prescribing of controlled substances.
• Civil lawsuits from patients or families.

Defense Strategies for Physicians Facing Charges

Defending against unlawful prescribing allegations requires demonstrating compliance with medical standards and good-faith practice. Common strategies include:

1. Proving Medical Necessity and Legitimate Purpose

The strongest defense is evidence that the prescription was justified by the patient's condition. This may involve:

Detailed medical records showing thorough examinations, diagnoses (e.g., chronic pain supported by imaging or history), and consideration of non-opioid alternatives.

Expert testimony from other physicians affirming that the prescribing aligned with accepted standards, such as the MBC's Guidelines for Prescribing Controlled Substances for Pain (updated 2023).

Documentation of patient progress, risk assessments, and informed consent discussions.

If the prescription addressed a verifiable medical issue—even if the outcome was poor (e.g., overdose due to patient misuse)—charges may not hold.

2. Lack of Criminal Intent (No Knowing Violation)

Prosecutors must prove the prescriber knowingly violated the law. Defenses here focus on good faith:

The physician followed prevailing guidelines at the time (e.g., older pain management standards emphasizing opioids).

The patient misled the prescriber about pain levels, history, or concurrent drug use (e.g., hiding doctor shopping).

Evidence of intent to provide optimal care, such as referrals to specialists, monitoring via CURES checks, or tapering plans.

Courts recognize that medicine involves judgment calls; negligence alone isn't criminality. Good-faith mistakes—without recklessness or profit motive—can defeat charges.

Other Potential Defenses

Mistake of Fact: The prescriber reasonably believed the patient wasn't an addict or had a legitimate need.

Compliance with Regulations: Proof of mandatory CURES consultations, proper recordkeeping, and adherence to MBC guidelines.

Challenging evidence from investigations (e.g., selective review of records ignoring context).

Early intervention by experienced counsel is crucial, as many cases resolve pre-charge through negotiation with prosecutors or the MBC.

Best Practices to Avoid Issues

Physicians can minimize risks by:

Consulting CURES before initial prescriptions and periodically thereafter.

Documenting everything: Exams, rationale, risks discussed, and follow-ups.  Have a tapering plan and note this in your medical records.  Have the patient sign the plan.

Using pain agreements, urine testing, and functional assessments for chronic prescriptions.  This is in addition to a tapering plan!

Staying updated via MBC guidelines, which emphasize patient evaluation, risk stratification, and multidisciplinary approaches.

Conclusion

HSC § 11153 protects patients from abuse but it infringes on the legitimate care concerns of competent and caring physicians.

We are in an era of heightened enforcement, physicians must navigate carefully. Charges can devastate careers, but robust defenses centered on medical necessity and good intent often succeed.

If facing investigation, consult a criminal defense attorney and licensing expert immediately. Responsible prescribing balances patient care with legal obligations—prioritizing documentation and standards is key.

Daniel Horowitz is a physician defense lawyer and criminal defense specialist certified by the California State Bar Board of Legal Specialization.  Call Daniel for an initial consultation.  (925) 283-1863