United States v. Hurwitz

Facts

UNITED STATES V. HURWITZ

459 F.3d 463 (2006)

NATURE OF THE CASE: Hurwitz (D) appealed convictions for drug trafficking for prescribing narcotic pain medicine in violation of 21 U.S.C.S. §§ 841(a)(1) and 846.

FACTS: D is a medical doctor dedicated to the treatment of patients suffering from pain. D uses opioids, including Oxycontin, and Dilaudid as part of his treatment protocol. Many of his patients were on a protocol that used very high doses of opioids to control their pain. Several of his patients were arrested for attempting to sell illicit and prescription drugs. D was indicted on numerous drug-related charges -- one count of conspiracy to engage in drug trafficking, one count of engaging in a continuing criminal enterprise, two counts of healthcare fraud, and 58 counts of drug trafficking, including two counts each of drug-trafficking resulting in serious bodily injury and drug-trafficking resulting in death. P contends that D was a drug dealer who operated out of a medical office rather than on a street corner. P produced an expert witnesses who testified that a doctor who knowingly prescribed opioids to an addict or to a patient the doctor knew was selling the drugs on the street was acting outside the bounds of legitimate medical practice. P presented compelling evidence suggesting that D continued to prescribe large quantities of opioids to patients that he knew were selling the drugs or abusing them. In tape-recorded appointments, D indicated that it was 'not inconceivable' to him that some patients were 'selling part of their medicines so they could buy the rest.' An expert witness testified that high-dose opioid therapy typically involved doses of the equivalent of approximately 195 milligrams of morphine a day, although there had been a study involving doses of 350 milligrams a day and another involving doses of up to two grams a day. D's doses vastly exceeded those quantities. A prescribed opioid dosage of 100 pills per day was not uncommon. Between July 1999 and October 2002, D prescribed to one patient a total of more than 500,000 pills, which amounted to more than 400 pills per day. D had previously been disciplined for improper prescribing practices by the Board of Medicine. D's expert testified that once a patient becomes tolerant of the side-effects, there is effectively 'no ceiling' on the quantity of opioids that can be prescribed if necessary to control pain. D's patients testified on his behalf, explaining that D was the only physician who had managed to relieve their debilitating pain. D was convicted of one count of drug trafficking conspiracy, one count of drug trafficking resulting in death, two counts of drug trafficking resulting in serious bodily injury, and forty-six counts of drug trafficking. The jury acquitted Hurwitz of six counts of drug trafficking, as well as one count of engaging in a continuing criminal enterprise and two counts of healthcare fraud. The jury failed to reach a decision on the remaining drug trafficking counts. D was sentenced to 25 years in prison. D appealed.

ISSUE: Is the inquiry into a doctor’s good faith under a §841 prosecution a subjective one?

RULE OF LAW: The inquiry into a doctor’s good faith under a §841 prosecution is not a subjective one but an objective one. 

HOLDING AND DECISION: (Traxler, Circuit Judge) Is the inquiry into a doctor’s good faith under a §841 prosecution a subjective one? No. To convict a doctor for violating § 841, the government must prove: (1) 'that the defendant distributed or dispensed a controlled substance'; (2) that the defendant 'acted knowingly and intentionally'; and (3) 'that the defendant's actions were not for legitimate medical purposes in the usual course of his professional medical practice or were beyond the bounds of medical practice.' D argues that the instructions required the jury to apply the knowledge requirement only to the act of writing a prescription, and that the instructions, therefore, permitted the jury to convict even if it concluded that D did not know that any given prescription was not for a legitimate medical purpose or was beyond the bounds of medical practice. D contends that the district court erred by rejecting his request for a 'good faith' instruction. The district court held that D's good faith was legally irrelevant to the drug-trafficking charges. We agree that a doctor's good faith generally is relevant to a jury's determination of whether the doctor acted outside the bounds of medical practice or with a legitimate medical purpose when prescribing narcotics. Registered physicians can be prosecuted under § 841 when their activities fall outside the usual course of professional practice.' A doctor can be convicted if the jury found that he knowingly distributed controlled substances other than in good faith for detoxification in the usual course of a professional practice and in accordance with a standard of medical practice generally recognized and accepted in the United States. A doctor could not be convicted if he merely made 'an honest effort' to prescribe in compliance with an accepted standard of medical practice. Some latitude must be given to doctors trying to determine the current boundaries of acceptable medical practice. It is proper to instruct juries that a doctor should not be held criminally liable if the doctor acted in good faith when treating his patients. Some latitude must be given to doctors trying to determine the current boundaries of acceptable medical practice. It is proper to instruct juries that a doctor should not be held criminally liable if the doctor acted in good faith when treating his patients. P argues that D is not entitled to reversal on this point because the good-faith instruction offered was an incorrect statement of the law. D's proposed instruction clearly sets forth a subjective standard, permitting D to decide for himself what constitutes proper medical treatment. The Supreme Court has held that 'registered physicians can be prosecuted under § 841 when their activities fall outside the usual course of professional practice.' Good-faith instructions have reflected an objective standard for determining whether the defendant acted in good faith. We are presented with the question of whether, in a § 841 prosecution against a doctor, the inquiry into the doctor's good faith in treating his patients is a subjective or objective one. We believe that the inquiry must be an objective one. D's instruction was not a correct statement of the law. The district court did not err by refusing the particular charge sought by D. P contends that because D's proposed instruction was not a correct statement of the law, any errors in the district court's good-faith instructions cannot justify a new trial. We disagree. The government's argument confuses two separate issues -- whether the district court erred by refusing to use the good-faith charge proposed by D, and whether the district court erred by affirmatively informing the jury that good faith was relevant only to the fraud charges. P's evidence was powerful and strongly indicative of a doctor acting outside the bounds of accepted medical practice, but we cannot say that no reasonable juror could have concluded that D's conduct fell within an objectively-defined good-faith standard. D presented expert testimony showing that it was proper to use opioids when treating addicts who suffered from pain. D was prejudiced by the district court's error. We vacate D's convictions under 21 U.S.C.A. §§ 841 and 846 and remand for a new trial.

LEGAL ANALYSIS: We believe it is not the province of courts to let a battle of the experts occur with respect to the protocols for medical treatment. Let the profession itself sort out the issues, and if needed they can easily revoke the license of a wayward doctor. 

Both sides presented experts in this case with conflicting information as to what was objectively reasonable. More importantly, D presented patients for whom the protocol worked. That is extremely strong evidence of an objective medical protocol and juries and courts should not be asked to pick sides in such cases.  

It is the art of medicine for a reason. 

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