The Accidental Drug Dealer: Hurwitz Sentenced

05/25/2011 12:10 pm ET

Dr. William Hurwitz was sentenced Friday to five years in prison for being a drug dealer, not a pain doctor. That's an improvement on the 25 year sentence he received at his first trial. But it's still unclear to me how the judge could sentence him to any time at all, given that the prosecution did not prove that he intentionally sold drugs.

As noted here when he was re-convicted, New York Times columnist John Tierney interviewed three of the jurors after the second trial. One said "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."

Said another, "There was no financial benefit to him that was very evident to us ... it was a really hard case for all of us. I think that Dr. Hurwitz really did care about his patients."

So why did they agree that he was guilty of intentionally selling narcotics -- as DEA head Karen Tandy said to the Washington Post, "Dr. Hurwitz was no different from a cocaine or heroin dealer peddling poison on the street corner"? They believed he'd "fallen down on the job" because he should have known that some of his patients were addicts and some were re-selling their drugs.

Now, how is that comparable to street corner drug dealing? Hurwitz did not profit additionally by giving large doses of opioids to his patients who were addicts or dealers. He didn't charge by the pill, so he had no financial incentive to prescribe high doses.

Charging per dose is clearly drug dealing, not medicine: but this wasn't going on. In contrast, Hurwitz treated the patients who turned out to be addicts and/or dealers no differently from his other patients -- ordering tests, doing examinations, requiring urine screens.

Although the jury believed that Hurwitz missed "red flags" that should have told him that these patients were not what they seemed, even if he did, it is not illegal to treat addicts or dealers who have demonstrable pain with opioids. It is only illegal to sell them drugs so that they can get high or to be re-sold-- but no evidence was presented that showed this beyond a reasonable doubt.

The judge even acknowledged in her sentencing statement that the doses Hurwitz prescribed were legitimate medicine-- that, as she put it, "The mere prescription of huge quantities of opioids doesn't mean anything." So how can she let a conviction stand in which one of the essential elements of the crime -- mens rea, criminal intent -- is not present?

Some advocates for pain patients and physicians are framing this as a victory, saying that public understanding of the problem has increased. And Pain Relief Network founder Siobhan Reynolds did get to testify before Congress this week in hearings related to oversight of the DEA, which show that Democrats are finally starting to realize that the DEA is compromising medical practice.

But as long as a doctor can be an accidental drug dealer -- a trafficker without knowing it-- pain patients are going to suffer.