So why did find him guilty of “knowingly and intentionally” distributing drugs “outside the bounds of medical practice” and engaging in drug trafficking “as conventionally understood”? After attending the trial and talking to the jurors, I can suggest two possible answers:
1. The jurors were confused by the law.
2. The law is a ass (to quote Mr. Bumble from “Oliver Twist”).
I can’t blame the jurors for being confused, because that’s the norm in trials of pain-management doctors. The standard prosecution strategy is to charge the doctor on so many counts and introduce so much evidence that the jurors assume something criminal must have happened. Their natural impulse, after listening to weeks of arguments, is to look for a compromise by digging into the mountain of medical minutiae – and getting in so deep that they lose sight of the big picture.
In this trial the jury heard three weeks of testimony concerning 45 different counts of drug trafficking involving 44 different prescriptions written for 19 different patients. It spent seven days deliberating, looking for what the prosecution called “red flags” (like urine tests showing that the patient had been taking illegal drugs). The jurors told me they had meticulously studied patients’ records and convicted Dr. Hurwitz on 16 counts because those prescriptions seemed more troubling than the rest – a fair enough assessment, because those particular patients did show more signs of trouble.
But did that mean Dr. Hurwitz’s motives were any more criminal in those 16 instances? Was he any more knowingly a drug dealer when writing those prescriptions? Prosecutors tried portraying him as a greedy co-conspirator with his drug-dealing patients, but none of the three jurors I interviewed bought that theory. (If any other jurors want to weigh in, you can write me at firstname.lastname@example.org.)
The evidence in the case – including conversatons during office visits that were furtively recorded by patients cooperating with narcotics agents – showed that Dr. Hurwitz was being conned. On one recording, a patient who’d been selling his OxyContins bragged to his wife (and fellow dealer) that Dr. Hurwitz “trusts the [expletive] out of me.”
“Those patients used the doctor shamelessly,” said a juror I’ll call Juror 1. (All three jurors, citing the controversy over the case, spoke to me on condition of anonymity, so I’ll refer to them by numbers.) This juror added, “They exploited him. I didn’t see him getting anything financial out of it. Many of his patients weren’t even paying him. He had to believe that he was just treating them for pain.”
The other jurors agreed. “There was no financial benefit to him that was very evident to us,” Juror 2 said. “It was a really hard case for all of us. I think that Dr. Hurwitz really did care about his patients.”
So why convict him? “There were just some times he fell down on the job,” Juror 2 said. The third juror echoed that argument using the prosecution’s language: “There were red flags he should have seen.”
Plenty of doctors would agree that he should have paid more attention to those warning signs. Plenty would agree that he fell down on the job. Some have already said he should have lost his medical license. But falling down on the job is generally not a criminal offense, especially when there’s no criminal intent.
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.