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.
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."
This is very good news, particularly if bleeds into other courts. The federal government's standard on what was a prosecutable offense with respect to opiods was basically "whatever we say it is." The standard was not only too vague for jurors to render a just conviction, it was too vague for well-intentioned pain doctors to know if they were abiding by the law. Hurwitz could still be convicted, but the jury would now have to find that he knowingly and intentionally prescribed drugs to be resold on the street.
I'd still rather these matter be determined by peers who sit on medical boards, not narcotics cops. But if these cases are going to be brought in criminal court, this is a more appropriate standard. Some of these doctors are getting hard time for sole offense of getting duped by their patients.
Jacob Sullum's running coverage of Hurwitz here .