On Friday U.S. District Judge Leonie Brinkema sentenced Virginia doctor William Hurwitz to four years and nine months in federal prison for 16 counts of "drug trafficking" based on his prescriptions of narcotic painkillers. That's less than one-fifth the 25-year sentence Hurwitz received after his first trial, in which he was found guilty of 50 counts, several of which carried mandatory minimum sentences of 20 years. Last year the U.S. Court of Appeals for the 4th Circuit overturned those convictions, finding that the judge, Leonard Wexler, had improperly instructed the jury not to consider whether Hurwitz had acted in good faith when he wrote presciptions for patients who abused or sold the drugs.
In addition to the change in jury instructions, which helped reduce the number of counts on which Hurwitz was convicted, the switch from Wexler to Brinkema made a big difference. Before the case went to the jury, she dismissed the three counts that carried mandatory minimums, which accused Hurwitz of drug trafficking resulting in the death of one patient and the serious injury of two others, finding that the prosecution had not presented enough evidence to back up the charges. In sentencing him to 57 months instead of the life sentence the prosecution wanted, Brinkema noted that the vast majority of Hurwitz's patients were legitimate and that he was, at least to some extent, a victim of deception by the others. Brinkema clearly heard the case with an open mind and took to heart the defense's points about the propriety of high-dose opioid therapy for severe chronic pain:
When she first took the case, Brinkema said she thought the dosages that Hurwitz prescribed were "absolutely crazy." But she said defense witnesses turned her around. "An increasing body of respectable medical literature and expertise supports those types of high-dosage, opioid medications," the judge said.
Some of the more than 40 supporters of Hurwitz who packed the courtroom said they were generally pleased. "I think the judge did her God-awful best to be fair," said Hurwitz's brother, Ken Hurwitz. "It's a harsh sentence, but it's vastly more reasonable" than the previous one, he said.
At worst, Hurwitz was guilty of trusting his patients too much and turning a blind eye to signs that they were faking or exaggerating their pain. Even in our current system, which requires doctors to help enforce drug prohibition, these alleged failings could have been addressed by the state medical board and should not have led to criminal prosecution. There was no evidence that Hurwitz deliberately fed the black market or that he profited from drug sales. But given the charges on which he was convicted, Brinkema's sentence is about as good a result as could reasonably have been expected. Having already served two and a half years, Hurwitz should be free by late 2009.