[fmichael]

New York Times, TierneyLab

April 19, 2007, 8:26 am

Judge Dismisses the Most Serious Charges Against Dr. Hurwitz
By John Tierney

ALEXANDRIA, Va. — His retrial in federal court here isn’t over yet, but Dr. William E. Hurwitz is already doing much better than he did the first time. Judge Leonie M. Brinkema has dismissed the most serious charges against him.

Dr. Hurwitz, whom I wrote about in a recent column, is the most prominent of the doctors who have been prosecuted for writing prescriptions for OxyContin and other painkillers. In 2004, he was convicted of drug trafficking and, most significantly, of writing prescriptions that led to bodily injury and deaths, crimes that carried a mandatory minimum sentence of 20 years. He was sentenced to 25 years and has been in prison for more than two years.

The verdict was overturned on appeal, leading to a retrial that has been going on for nearly four weeks. On Wednesday afternoon, after the defense rested its case, the judge granted the defense’s request to dismiss the charges of causing bodily injury or death. Dr. Hurwitz still faces more than three dozen counts of illlegally distributing narcotics and participating in a criminal conspiracy, but these lesser offenses do not carry mandatory minimum sentences.

In dismissing the charges, the judge cited two arguments made by the defense. One was that the prosecution had not proved that the painkillers prescribed by Dr. Hurwitz caused injury and death. The other argument relied on a Supreme Court decision last year that federal narcotics laws did not give the Justice Department the power “to define general standards of medical practice” — which is what federal prosecutors had effectively been trying to do in the cases of Dr. Hurwitz and other doctors.

The prosecutors had argued that a doctor could be a drug trafficker even if he didn’t know the drugs he prescribed were being resold, and even if the drugs weren’t actually being resold. A doctor was supposedly violating federal law simply by issuing a prescription that was outside the bounds of “medical practice.” Because of this interpretation, trials of Dr. Hurwitz and other doctors turned into debates over whether their prescribed doses of Oxycontin and other opioids were medically appropriate for the patients.

But the Supreme Court, in its Gonzales v. Oregon decision last year, reaffirmed the states’ responsibility to set medical standards and ruled that federal law merely ‘’bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood.'’

Dr. Hurwitz could still be convicted of drug trafficking if the jury decides that he knowingly and intentionally prescribed drugs to be resold or misused. He denied doing so; prosecutors argued that some of his patients were such blatant dealers and addicts that he must have known what they were doing.

But those dealers and addicts were not the patients whose injuries and deaths were the basis of the prosecution’s most serious charges against Dr. Hurwitz. The defense successfully argued that he had no reason to suspect that these patients would peddle or misuse the drugs he prescribed, and therefore, according to the Supreme Court’s decision, there were no grounds for charging him with violating federal drug laws.

As the jury contemplates the remaining charges against Dr. Hurwitz, here’s a question for lawyers, doctors and patients: What does the dismissal of the serious charges against Dr. Hurwitz mean for other doctors accused of violating federal prosecutors’ idea of proper medicine?

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