Academic journal article Philosophy and Public Policy Quarterly

Pushing Drugs or Pushing the Envelope: The Prosecution of Doctors in Connection with Over-Prescribing of Opium-Based Drugs

Academic journal article Philosophy and Public Policy Quarterly

Pushing Drugs or Pushing the Envelope: The Prosecution of Doctors in Connection with Over-Prescribing of Opium-Based Drugs

Article excerpt

Introduction

On July 13, 2007, Dr. William Hurwitz was sentenced to 57 months in federal prison for drug-trafficking. This result was portrayed by the press as a victory for the defendant as this conviction and sentence resulted from a retrial (his original conviction was overturned by the 4th Circuit) of counts that had originally landed Hurwitz with a 25-year sentence. But while 57 months is surely better for the doctor than 25 years, it is still a troubling sentence for a doctor whom the judge acknowledged was not motivated by financial gain and who arguably did much to help both his individual patients and the cause of pain patients generally.

Dr. Hurwitz is one of a growing number of doctors being prosecuted in federal and state courts for prescribing controlled substances (usually opium-based drugs) in a manner not authorized by their professional licenses or federal law. The doctors are usually charged with drug trafficking, but also sometimes with conspiracy to distribute drugs or even with homicide in cases where patients have died. The statute under which most of these prosecutions occur--the Controlled Substances Act (CSA)--allows physicians to prescribe controlled substances (if the physicians are registered to do so) in the course of medical practice but prohibits them from distributing drugs outside of such medical practice. While physician actions that are deemed to be outside the bounds of reasonable medical care are typically the basis for civil liability for malpractice only, the Supreme Court has held (as long ago as 1975) that a medical professional is not immune from normal criminal liability for drug trafficking. Just because a person holds a medical degree does not mean that he can simply sell drugs or sell prescriptions for controlled substances. Such action constitutes drug trafficking. But when the doctor writes prescriptions in his office, following consultation with a patient, and receives no compensation other than the normal fee for service, can this still be drug trafficking? Recent cases have emphatically held "yes." This result makes a kind of sense as well. After all, an unscrupulous doctor could simply be writing any and all prescriptions asked for, while wearing the white coat and doing business in a room that looks like a doctor's office. While the doctor is only getting a routine fee for an office consultation, if the doctor offers no real medical consultation and merely sees so-called patients one after the other, dispensing scripts to all-comers, then the fee-for-service becomes the method of payment for prescriptions (which enable the "patient" to get access to controlled drugs). Is this not drug-trafficking merely dressed up in medical guise?

After all, what makes actions (here writing prescriptions) medical practice? It isn't just who is doing it. The white coat and the office setting don't ensure that actions constitute medical practice. Perhaps it is whether the person is being paid money (or something else) for prescriptions. If so, the actions don't constitute medical practice. But once we recognize that this payment can be indirect, like in the scenario described above, it is unclear whether this test works or instead devolves into one that focuses on the intentions of the physician him or herself. If she intends to practice medicine (and makes money by way of doing so) then it is medical practice. If she intends to make money by selling drugs, then it isn't. But this is a tricky path to walk down. Its very structure is reminiscent of debates about the doctrine of double effect which itself has proved quite controversial.

Before proceeding down this route, let's take a closer look at the legal standard being adopted by courts to delineate permissible (though potentially negligent) actions from criminal behavior by physicians. A violation of the Controlled Substances Act requires that the physician (1) knowingly distribute a controlled substance (2) with knowledge that it is controlled and (3) that he or she do so "outside the usual course of medical practice. …

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