aTypical Joe: a gay New Yorker living in the rural South
Tuesday, May 01, 2007
A doctor redefined as a non-doctor by a jury
Dr. William Hurwitz, the pain management physician originally convicted in 2004 of over 50 counts of distributing narcotics, was found guilty in his retrial Friday on sixteen counts of drug-dealing. John Tierney on the compromise federal jury verdict:
I asked the three jurors what they made of the distinction made by Dr. Hurwitz’s lawyers and by the judge: that this trial was not a malpractice case. In legalese, the jurors were to decide not whether Dr. Hurwitz had provided the proper “standard of care,” but whether he had violated the Controlled Substances Act by prescribing drugs “outside the bounds of medical practice.” The jurors said they were all aware of the distinction, but none of them claimed to understand it.
“I don’t know that I know enough to be clear about that gray area between malpractice and out of bounds,” Juror 1 said.
“We just had to go with our gut,” Juror 2 said.
“That was definitely a struggle,” Juror 3 said. “That was a gray area.”
Again, I can’t blame the jurors for being confused, because lawyers can’t agree on this distinction either. And that’s why, in the end, I think Dr. Hurwitz’s problem was not so much with the jurors as with the law. The Controlled Substances Act is a ass - or at least it’s been turned into one by the Drug Enforcement Administration and the Department of Justice.
A doctor is obviously acting outside the bounds of medical practice when he’s intentionally prescribing OxyContin not as medicine but as inventory to drug dealers. But as the law has come to be applied by narcotics agents and federal prosecutors, a doctor who is genuinely trying to treat pain can still be sent to prison. Lapses in medical judgment - or even just differences in medical judgment - have been criminalized. A doctor can be suddenly redefined as a non-doctor. All it takes is a second opinion from a jury.
