An Oakmont doctor who was found guilty of 153 counts of illegally distributing OxyContin and other drugs in exchange for sex argues that his conviction should be overturned because the government based its case on the civil standard of medical malpractice and not on a criminal standard.

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That argument will be presented on behalf of Dr. Bernard Rottschaefer today before the 3rd U.S. Circuit Court of Appeals in Philadelphia.

Eli D. Stutsman, an Oregon attorney who specializes in appellate work, will argue that the U.S. attorney's office prosecuted Dr. Rottschaefer using the wrong legal standard, and therefore his conviction should be reversed.

"Malpractice is not a crime," Mr. Stutsman said. "The government has substituted the civil standard for the criminal standard."

To prove that a doctor unlawfully distributed a controlled substance, the government must show that the drugs were prescribed "outside the course of professional practice," Mr. Stutsman said.

Instead, the prosecution proved that Dr. Rottschaefer knowingly dispensed a controlled substance and that when he did so, "he did not act in good faith ... for legitimate medical purpose," he said.

The prosecution's case was based on the testimony of four women who said they received prescriptions from Dr. Rottschaefer for OxyContin, Xanax and Duragesic. In exchange for the drugs, they performed sex acts.

The prosecution has said the sexual favors Dr. Rottschaefer received served as his motive in the case, but they were not an actual element of the crime.

"That was not a requirement of the government's proof," said U.S. Attorney Mary Beth Buchanan. "It was, however, further evidence of the violation."

Mr. Stutsman plans to use a Jan. 17 Supreme Court decision regarding Oregon's Death With Dignity Act to back his argument. In that case, Gonzales v. Oregon, a 6-3 majority found that the U.S. attorney general does not decide what are legally accepted medical practices.

That ruling allowed physicians in Oregon to continue to prescribe medications to terminally ill patients who want to end their lives.

Though the two cases don't seem factually similar, the issue of federal prosecutors determining legitimate medical practice links them, Mr. Stutsman said.

Dr. Rottschaefer was sentenced in September 2004 to 6¹/₂ years in prison, but he has remained free pending appeal.

Shortly after his conviction, defense lawyers received hundreds of pages of letters written by Jennifer Riggle, one of the women who testified against Dr. Rottschaefer.

While she was incarcerated on her own charges, Ms. Riggle wrote to her then-boyfriend claiming that she never had sex with Dr. Rottschaefer and that she was lying to get a reduced sentence.

Claiming those letters were newly discovered evidence, Dr. Rottschaefer asked the district court in December 2004 for a new trial. U.S. District Judge Gary L. Lancaster denied the request, saying the evidence was merely cumulative, because another witness during the trial testified that Ms. Riggle lied.

The prosecution discounts Ms. Riggle's letters, saying that even if she did lie on the stand -- and they don't believe she did -- they still had enough to convict Dr. Rottschaefer.

Dr. Rottschaefer is no longer licensed to practice medicine in Pennsylvania.