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?