- The Washington Times - Saturday, December 25, 2004

I have to admit I’m impressed by the achievement of the federal prosecutors who call McLean, Va., pain doctor William Hurwitz “a major and deadly drug dealer.” Though the evidence at his trial made it clear Dr. Hurwitz was not a drug trafficker, they still managed to get him convicted.

The prosecutors did not dispute Dr. Hurwitz had helped hundreds of patients recover their lives by prescribing the high doses of opioids they needed to control their chronic pain. Instead they pointed to the small minority of his patients — 5 to 10 percent, by his attorneys’ estimate — who misused the drugs, sold them illicitly, or both.

The prosecutors did not claim Hurwitz, who could receive a life sentence, got even a dime from illegal drug sales. Instead they cited his physician income, which they said was boosted by fees from patients faking or exaggerating their pain.

The prosecutors did not allege Dr. Hurwitz had any explicit arrangement with those patients. Instead they described a “conspiracy of silence,” carried out by “a wink and a nod.”

The evidence was, unsurprisingly, ambiguous at best, with plenty of room for reasonable doubt. Yet prosecutors got the jury to overlook their case’s obvious weaknesses and convict Hurwitz, in essence, of trusting his patients too much.

That verdict sends a clear message to doctors that it’s better to err on the side of suspicion. Knowing they could be prosecuted for believing a patient who turned out to be an addict or a dealer, doctors will be even less inclined to take the risk, compounding the already appalling problem of people in needless pain because physicians are afraid to help them.

Hurwitz was not afraid, which is why desperate patients flocked to him. Inevitably, he also attracted people who sought to exploit his compassion. Yet none of the surreptitiously recorded conversations with patients-turned-informants that the prosecution presented included any acknowledgment of the conspiracy Hurwitz supposedly led.

To the contrary, the testimony of former patients convicted of drug dealing tended to confirm his defense: He was tricked by “predators” who always knew the right thing to say to get more drugs and who bragged about how they had won his trust. One former patient said Dr. Hurwitz’s concern for his patients was his vulnerability; another recalled using makeup to cover injection marks on his arm and smoking crack before appointments so he would not seem suspiciously sleepy. All described their lies: complaints of unrelieved pain, reports of lost prescriptions, explanations for brushes with the law.

If there was a conspiracy, defense attorney Patrick Hallinan asked, “Why would you have to lie?” And if Dr. Hurwitz and his patient-dealers were in cahoots, why would he carefully record all the potential signs of trouble the prosecution would later cite as evidence of his “head-in-the-sand attitude”?

Mr. Hallinan conceded Hurwitz may have had “a degree of naivete” and “even foolishness” in accepting some of the stories. But he persuasively portrayed Dr. Hurwitz as “the perfect mark for these people”: dedicated to helping patients in pain and loath to cut them off even for misbehavior.

Prosecutors repeatedly invited the jurors to judge Hurwitz’s performance as a doctor, suggesting he was arrogant, negligent and indifferent to his patients. That portrait was belied by the testimony of patients who are eternally grateful for Dr. Hurwitz’s courageous compassion.

More to the point, the jury was not supposed to decide if Hurwitz was a good doctor; that’s an issue for the state medical board. The jury was supposed to determine if Hurwitz intentionally fed the black market in opioids. The evidence indicates he prescribed in good faith, intending to treat pain, and so his drug trafficking conviction is a chilling precedent.

Writing in USA Today during Hurwitz’s trial, Karen Tandy, head of the Drug Enforcement Administration, said, “Doctors acting in good faith and in accordance with established medical norms should remain confident in their ability to prescribe appropriate pain medications.”

Notice that “good faith” is not enough to keep the DEA at bay. Doctors also have to prescribe “in accordance with established medical norms,” as determined by the DEA, and prescribe only those medications and dosages the DEA deems “appropriate.”

With reassurances like that, who needs warnings?

Jacob Sullum is nationally syndicated columnist.

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