Jacob Sullum

Instead of the life sentence the prosecution wanted, Brinkema chose a term of 57 months, most of which Hurwitz already has served. While the jury concluded that Hurwitz should have paid more attention to warning signs that some of his patients were not on the level, Brinkema noted that the vast majority of his patients were legitimate and that the rest had taken steps to deceive him.

In a sense, Hurwitz was lucky. Yet what doctor wants to take a chance of ending up in a situation anything like his, where honest mistakes could be treated as felonies?

Rannazzisi emphasized that the DEA investigates only a tiny percentage of doctors each year. But the chilling effect of cases like Hurwitz's extends far beyond the few who lose their prescription privileges or go to prison.

According to the DEA's reading of the Controlled Substances Act, a doctor who believes he is practicing good medicine is still breaking the law if he operates outside "the usual course of professional practice." Defense attorney John Flannery, who testified at the same hearing where Rannazzisi appeared, noted that one of his clients, now serving a 30-year sentence for prescriptions the DEA considered inappropriate, was accused of violating "professional norms" by prescribing more than 160 milligrams of OxyContin a day, one-sixth the maximum covered by Medicaid.

When inadequate treatment is the usual course of professional practice, doctors must be brave simply to prescribe the pain medication their patients need to function.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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