United States v. Collier, No. 72-3242.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtCOLEMAN and SIMPSON, Circuit , and ESTES
Citation478 F.2d 268
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Henry M. COLLIER, Jr., M. D., Defendant-Appellant.
Docket NumberNo. 72-3242.
Decision Date01 May 1973

478 F.2d 268 (1973)

UNITED STATES of America, Plaintiff-Appellee,
v.
Henry M. COLLIER, Jr., M. D., Defendant-Appellant.

No. 72-3242.

United States Court of Appeals, Fifth Circuit.

May 1, 1973.


478 F.2d 269
COPYRIGHT MATERIAL OMITTED
478 F.2d 270
B. Clarence Mayfield, Robert E. Barker, Savannah, Ga., for defendant-appellant

R. Jackson B. Smith, Jr., U. S. Atty., Augusta, Ga., Lamar C. Walter, Asst. U. S. Atty., Savannah, Ga., for plaintiff-appellee.

Before COLEMAN and SIMPSON, Circuit Judges, and ESTES, District Judge.

ESTES, District Judge:

Dr. Henry M. Collier, Jr., a physician authorized to dispense controlled substances, pleaded guilty to six counts of violating 21 U.S.C. § 841(a) (1) by distributing a controlled substance, methadone, a synthetic opiate,1 while not acting in the usual course of his professional practice and was fined $20,000. Dr. Collier's appeal consists exclusively of a multi-faceted attack upon the constitutionality of 21 U.S.C. § 841(a) (1) as applied to physicians.

Dr. Collier's primary contention is that § 841(a) (1), as applied to physicians, is unconstitutionally vague. This argument centers on the basis that Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and the regulations issued pursuant to the act2 make it illegal for a

478 F.2d 271
physician to dispense directly to the ultimate user a schedule II controlled substance other than "in the course of his professional practice." Appellant contends that those words do not warn the physician of what conduct is proscribed, and that the statute is without objective standards and is subject to diverse interpretation. Although this issue has not been previously determined concerning the present act, the same standard has been judicially interpreted in prior federal drug statutes.3 Manifestly the language "in the course of professional practice" is intended to limit the immunity of a licensed practitioner. It is apparent that a licensed practitioner is not immune from the act solely due to his status, White v. United States, 399 F.2d 813 (8 Cir. 1968), but rather, because he is expected to prescribe or dispense drugs within the bounds of his professional
478 F.2d 272
practice of medicine. A physician is restricted to dispensing or prescribing drugs in the bona fide treatment of a patient's disease, including a dispensing of a moderate amount of drugs to a known addict in a good-faith attempt to treat the addiction or to relieve conditions or suffering incident to addiction. Linder v. United States, 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819 (1925); Boyd v. United States, 271 U.S. 104, 46 S.Ct. 442, 70 L.Ed. 857 (1926); United States v. Brandenburg, 155 F.2d 110 (3 Cir. 1946); Strader v. United States, 72 F.2d 589 (10 Cir. 1934). However, under the guise of treatment a physician cannot sell drugs to a dealer nor distribute drugs intended to cater to cravings of an addict. Jin Fuey Moy v. United States, 254 U.S. 189, 41 S.Ct. 98, 95 L. Ed. 214 (1920); United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493 (1919); Webb v. United States, 249 U.S. 96, 39 S.Ct. 217, 63 L.Ed. 497 (1919); United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922). Congress did not intend for doctors to become drug "pushers." United States v. Warren, 453 F.2d 738 (2 Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2040, 32 L.Ed.2d 331 (1972); White v. United States, 399 F.2d 813 (8 Cir. 1968)

In making a medical judgment concerning the right treatment for an individual patient, physicians require a certain latitude of available options. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 747, 35 L.Ed.2d 201 (1973). Hence, "what constitutes bona fide medical practice must be determined upon consideration of evidence and attending circumstances." Linder v. United States, supra, 268 U.S. at 18, 45 S.Ct. at 449.

That statutes affecting medical practice need not delineate the precise circumstances constituting the bounds of permissible practice is clearly illustrated by two recent cases in which the Supreme Court was called upon to consider whether certain abortion statutes were unconstitutionally vague in distinguishing between legal and illegal abortions. In United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971), a District of Columbia statute made abortions illegal unless "necessary for the preservation of the mother's life or health." The Court held that the term "health" included psychological as well as physical well-being and, holding that the statute presented no problem of vagueness, concluded:

"Indeed, whether a particular operation is necessary for a patient\'s physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered."

402 U.S. at 72, 9 S.Ct. at 1299.

In Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L.Ed.2d 201 (1973), a Georgia statute which provided that it was illegal for a physician to perform an abortion except "based upon his best clinical judgment that an abortion is necessary" was attacked as vague because the word "necessary" was undefined. The Court held the language not vague because "whether . . . `an abortion is necessary,' is a professional judgment that the Georgia physician will be called upon to make routinely." 93 S.Ct. at 747. Similarly here the physician must make a professional judgment as to whether a patient's condition is such that a certain drug should be prescribed.

Appellant next contends that the statute violates the Tenth Amendment by invading the state's residual police powers, in particular the power to control medical practice. The Tenth Amendment does not operate upon a valid exercise of power delegated to Congress by the Commerce Clause. Similar attacks upon § 841(a) (1) as invading the police power reserved to the states because the statute does not require a showing that the individual acts prosecuted affected interstate commerce have already been rejected by both the Fifth and Sixth Circuits. United States v. Lopez, 459 F.2d 949 (5 Cir. 1972); United States v. Scales, 464 F.2d 371 (6 Cir.

478 F.2d 273
1972). These cases held that § 841(a) clearly constituted a permissible exercise of Congress's powers under the Commerce Clause....

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53 practice notes
  • Chaney v. Heckler, No. 82-2321
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 17 Enero 1984
    ...96 S.Ct. 335, 46 L.Ed.2d 333 (1975) (physician violates related law when he sells illicit drugs to addicts); United States v. Collier, 478 F.2d 268 (5th Cir.1973) (physician using drugs is outside the scope of the practice of Indeed, FDA's prior interpretation of the relevant legislative hi......
  • US v. BIRBRAGHER, No. 08-4004.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 26 Abril 2010
    ...when he takes actions that he does not in good faith believe are for legitimate medical purposes."); United States v. Collier, 478 F.2d 268, 270-72 (5th Cir.1973) (rejecting argument that § 841(a), as applied to physicians, is unconstitutionally vague). In sum, Birbragher had adequate ......
  • U.S. v. Rosenberg, No. 74-2197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 31 Marzo 1975
    ...v. Jobe, 487 F.2d 268, 269 (10th Cir. 1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974); United States v. Collier, 478 F.2d 268, 271-72 (5th Cir. 1973) ("It is apparent that a licensed practitioner is not immune from the act solely due to his status, . . . but rat......
  • Lang v. Berger, No. 76 Civil 1737.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 8 Febrero 1977
    ...denied, 423 U.S. 1031, 96 S.Ct. 562, 46 L.Ed.2d 404 (1975) ("in the course of professional practice"); United States v. Collier, 478 F.2d 268, 270-72 (5th Cir. 1973) (same); Hoke v. Board of Medical Examiners, 395 F.Supp. 357, 362 (W.D.N.C.1975) ("grossly immoral conduct, or ......
  • Request a trial to view additional results
53 cases
  • Chaney v. Heckler, No. 82-2321
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 17 Enero 1984
    ...96 S.Ct. 335, 46 L.Ed.2d 333 (1975) (physician violates related law when he sells illicit drugs to addicts); United States v. Collier, 478 F.2d 268 (5th Cir.1973) (physician using drugs is outside the scope of the practice of Indeed, FDA's prior interpretation of the relevant legislative hi......
  • US v. BIRBRAGHER, No. 08-4004.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 26 Abril 2010
    ...when he takes actions that he does not in good faith believe are for legitimate medical purposes."); United States v. Collier, 478 F.2d 268, 270-72 (5th Cir.1973) (rejecting argument that § 841(a), as applied to physicians, is unconstitutionally vague). In sum, Birbragher had adequate ......
  • U.S. v. Rosenberg, No. 74-2197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 31 Marzo 1975
    ...v. Jobe, 487 F.2d 268, 269 (10th Cir. 1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974); United States v. Collier, 478 F.2d 268, 271-72 (5th Cir. 1973) ("It is apparent that a licensed practitioner is not immune from the act solely due to his status, . . . but rat......
  • Lang v. Berger, No. 76 Civil 1737.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 8 Febrero 1977
    ...denied, 423 U.S. 1031, 96 S.Ct. 562, 46 L.Ed.2d 404 (1975) ("in the course of professional practice"); United States v. Collier, 478 F.2d 268, 270-72 (5th Cir. 1973) (same); Hoke v. Board of Medical Examiners, 395 F.Supp. 357, 362 (W.D.N.C.1975) ("grossly immoral conduct, or ......
  • Request a trial to view additional results

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