John Tierney writes: The Hurwitz Jurors Explain Further



These jurors bought the prosecution’s argument that medical negligence was a crime. They decided that a doctor’s role as a drug cop was so important that even if he had no criminal motive, he should be sent to prison if a group of laymen looked over his records and decided that they would have done it differently. These jurors worked hard, but they had an impossible job. It’s hard enough for a medical review board of doctors to judge a colleague’s actions when deciding whether to revoke his license. It’s hard enough for medical experts to judge negligence when they pore over all the details in a single malpractice case. This lay jury essentially had to decide 19 malpractice cases at once. Hurwitz was a former volunteer medical director for the Peace Corps in Brazil in the 1970's.

John Tierney writes: The Hurwitz Jurors Explain Further

The Hurwitz Jurors Explain Further

By John Tierney

Tags: pain, William Hurwitz

The Hurwitz jurors will not win any popularity contests with the readers of this blog, to judge from the responses to the post quoting the jurors’ reasons for convicting Dr. William Hurwitz. But let me give them a chance to further explain their verdict.

The three jurors I interviewed said they’d worked hard to do their best based on the information they had — which was necessarily limited, given the confines of a trial and their lack of expertise in pain treatment. “Last Friday I left the courthouse thinking we may not have gotten the job done and now I know we didn’t,” Juror 3 told me, citing the additional information about the case and the issues of pain management she picked up after the trial (some of it from the posts and comments here). “I went into this blind and came out wishing I was.”

All three jurors expressed sympathy for Dr. Hurwitz and said they’d be satisfied to see him sentenced to the time he has already served. “Two and a half years is enough,” Juror 1 said. Juror 2 said it wasn’t a juror’s role to decide the sentence but added, “I will tell you that I’m saddened by the fact that those who were selling his drugs have, in most cases, spent less time in prison than Dr. Hurwitz has already served. But, as you know, that cannot be considered when deciding guilt or innocence. Still, if he were released for time served, I would feel justice was served.”

Juror 3 told me, “I do think that two and a half years would be enough time spent in prison. Since I don’t think Dr. Hurwitz has any chance of getting his medical license back, I don’t think there is any threat of him repeating his same mistakes. I also don’t think it’s useful to have him spend 20 years in prison when the actual drug dealers spent an average of less than a few years. Unfortunately, we were not allowed to consider his sentencing in our determination of guilty or not guilty.”

This third juror also offered, via e-mail, an explanation of how they decided to convict Dr. Hurwitz on 16 of the 45 counts of drug trafficking:

We thoroughly examined the evidence in every single case, and there were striking differences in some of the cases in which we decided on a guilty verdict. In many of these cases, it was not necessarily the fact that he knew they were selling their medications, but that he knew they were abusing them. However, as time neared the end of his practice (during which we found many of the guilty verdicts), some of his patients had a number of “red flags”. i.e, they had been arrested for drug trafficking, had 3 or 4 postive cocaine tests in a row, or had called in for several early refills in a short period of time. This is not to say that we found Dr. Hurwitz guilty because he cared for patients that had used cocaine, or that he trusted them when they claimed to have lost their medication. Dr. Hurwitz did take appropriate action when treating certain patients with “red flags” and in those cases we found him not guilty. The guilty verdicts were not based on a single action or inaction that Dr. Hurwitz took, or that he had a lapse in medical judgment, but instead a continuous, deliberate effort to ignore that his patients were using these drugs recreationally or selling them.

I wouldn’t have assessed the evidence that way. I didn’t see any “continuous, deliberate effort” to ignore red flags. Dr. Hurwitz could have been more careful, but what impressed me was how much trouble he took with low-life characters whom most doctors wouldn’t have bothered to treat. When one woman told him she’d lost her prescription at a bridal shower, he called the hostess of the bridal shower to check her story.

When Dr. Hurwitz feared patients might try to beat the urine tests by diluting the samples with water, he insisted on going into the bathroom and standing behind them as they urinated. But they still found a way to con him by bringing in someone else’s urine in a little plastic bottle attached to a tube inside their pants. One enterprising patient even made sure to heat the urine to body temperature by placing the bottle near his car’s engine just before going into his appointment.

I do agree that these jurors made a serious effort to sort through dozens of charges involving 19 patients. In refusing to convict him on a majority of the counts, they were certainly more discriminating than the jurors at Dr. Hurwitz’s first trial, who convicted on three times as many counts. That 2004 jury even found him guilty of causing injury and death in several patients despite there being no proof that his prescriptions were responsible — as the defense demonstrated so conclusively in this year’s trial that the charges were dismissed by the judge.

The jury at this trial was also unusually discriminating, by comparison with other juries in similar cases, in rejecting some of the scary assertions by the prosecution about the dangers of opioid prescriptions. (The junk science in these trials is astonishing — I’ll get to that topic in another post.)

But these jurors bought the prosecution’s argument that medical negligence was a crime. They decided that a doctor’s role as a drug cop was so important that even if he had no criminal motive, he should be sent to prison if a group of laymen looked over his records and decided that they would have done it differently. These jurors worked hard, but they had an impossible job. It’s hard enough for a medical review board of doctors to judge a colleague’s actions when deciding whether to revoke his license. It’s hard enough for medical experts to judge negligence when they pore over all the details in a single malpractice case. This lay jury essentially had to decide 19 malpractice cases at once.

You can blame the jurors for their verdict, but remember that it wasn’t their decision to drag all these cases into criminal court. As Juror 2 wrote to me:

While it may be that pursuing these types of cases may be more appropriate under medical malpractice, the fact is these cases apparently are also covered by federal criminal statutes dealing with the distribution of controlled substances. As long as that is the case, prosecutors will have the option of pursuing criminal charges.

I can’t say I really understand this.

Can anyone else?

And do any of the other jurors have an opinion on how much prison time Dr. Hurwitz should serve? If so, send me an e-mail at (tierneylab@nytimes.com).

Links to Related Topics (Tags):

Headlines: May, 2007; Peace Corps Brazil; Directory of Brazil RPCVs; Messages and Announcements for Brazil RPCVs; Staff; Medicine; Crime; Jurisprudence; Peace Corps Library; Peace Corps Countries of Service; Peace Corps Original Sources; Bulletin Board; Recent Peace Corps News

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