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    Tuesday, May 01, 2007

    Egads: John Tierney interviews the jurors who convicted Dr. Hurwitz of inappropriately prescribing narcotics:

    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."

    Let that be a lesson. Be like House, don't trust the patients.

    posted by Sydney on 5/01/2007 08:38:00 AM 2 comments


    So what's the difference, Sydney?

    By Anonymous Anonymous, at 2:55 AM  

    Do you mean "What's the difference between malpractice and out of bounds?" You can make a good argument for malpractice - but that's not what he was convicted of. He was convicted of a criminal offense involving trafficking of narcotics.

    We can't measure pain objectively. We have to take a patient's word for it. His crime seems not so much trafficking in narcotics as trusting his patients too much. Should someone really be put in jail for that?

    Society can't have it both ways. You can't whine that doctors undertreat pain then turn around and put a doctor in jail for treating pain.

    By Blogger sydney, at 6:00 AM  

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