Oxycontin News Blog

Since the verdict in the Hurwit trial on Friday, I’ve interviewed three of the twelve jurors, and they told pretty much the same story. They said that the jury considered Dr. William Hurwitz to be a doctor dedicated to treating pain who didn’t intentionally prescribe drugs to be resold or abused. They said he didn’t appear to benefit financially from his patients’ drug dealing and that he wasn’t what they considered a conventional drug trafficker.

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.

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.

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.

John Tierney always wanted to be a scientist but went into journalism because its peer-review process was a great deal easier to sneak through. Now a columnist for the Science Times section, Tierney previously wrote columns for the Op-Ed page, the Metro section and the Times Magazine. Before that he covered science for magazines like Discover, Hippocrates and Science 86.

With your help, he's using TierneyLab to check out new research and rethink conventional wisdom about science and society. The Lab's work is guided by two founding principles:1. Just because an idea appeals to a lot of people doesn't mean it's wrong.2. But that's a good working theory.

Comments and suggestions are welcome, particularly from researchers with new findings. E-mail tierneylab@nytimes.com .

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ALEXANDRIA, Va. – After deliberating for seven days in federal court here, a jury late this afternoon found Dr. William Hurwitz guilty on 16 counts of drug trafficking. Dr. Hurwitz, whose legal battles over his opioid prescriptions made him a hero to some chronic-pain patients, was not convicted on the other 29 counts against him.

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After five days of deliberation, the jurors in the Hurwitz case still haven't reached a verdict, and I wonder if they're arguing about one of the chief puzzles of the case: his criminal motive.

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