Tierney, blogosphere on Dr. William Hurwitz verdict

by Ted Frank on April 30, 2007

John Tierney does some good reporting on the compromise federal jury verdict that criminally convicted William Hurwitz on sixteen counts of drug-dealing: “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.” Also: Kirkendall, Sullum, Kevin MD, Szalavitz, Balko, Satel (2004), Cato (2004), Hurwitz web site. Related on Overlawyered: Jan. 19, 2006, Jun. 15-17, 2001.

{ 2 comments }

1 doc tom 04.30.07 at 12:38 pm

i read a quote from one of the jurors about not beng able to define what was outside accepted medical care…and having to make a judgement based on a “gut feeling”. isnt that at odds with beyond a reasonable doubt…this was criminal case right? i would think that a gut feeling would be more analogous to a preponderence of evidence rather than beyond a reasonable doubt. can someone with a more exact knowledge or our system of jurisprudence perhaps educate me?

mike

2 karen 05.03.07 at 2:42 am

Well, I just finished my crim law final, so I’ll do my best to weigh in. As mentioned, the standard in crim trials is “beyond a reasonable doubt,” and it applies to every material element of the crime. The statute in question here appears to state that the doctor must act “knowingly” (note: this is based on what the articles say; I haven’t read the actual statute). Because the patient must actually deal drugs for a crime to be committed, the doctor should have to act “knowingly” with regard to that element–not just recklessly or negligently, as was possibly the case here. He should have had to KNOWN that the patient was reselling the drugs.

The only theory the prosecution could have stood on was “conscious ignorance”: that he deliberately avoided knowledge of something he was aware was likely happening. This seems like a stretch.

I haven’t taken crim procedure yet (only civil), but in civil cases you can ask for a verdict with findings… so the defense could have asked the jurors to specifically find that Dr. Hurwitz knew his patients were dealing drugs. From the limited comments of the three jurors, they probably would have answered “no.” I don’t know that you can do that in crim proceedings.

Interesting, then, that a crim case is actually being held to a lower standard than a civil trial.

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