Under-treatment of Pain

Prominent Northern Virginia pain specialist Dr. William Hurwitz was convicted last Friday on 16 counts of drug trafficking after a jury for the second time decided that he had overstepped the bounds of legitimate medical practice in prescribing large doses of opioid pain relievers to patients. Hurwitz' original conviction was overturned on appeal, and supporters hoped he would walk free after his second trial.

But the 12-member jury instead found him guilty on the 16 counts, not guilty on 17 others, and presiding Judge Leonie Brinkema dismissed the remaining 12 counts, saying she did not want jurors to have to come back and deliberate further. Brinkema had earlier dismissed the most serious charges against Hurwitz -- that his prescribing had caused the death of a patient and injury to two others.

Brinkema's dismissal of the remaining counts irked prosecutor Arthur Rossi, who behaved like a sore winner after managing to run up enough convictions against Hurwitz to send him to prison for centuries. Although he could be sentenced to time served,
he could also get up to 20 years in prison on each count. He has been jailed since he was originally found guilty in November 2004.

Still, although Hurwitz and his defense team would be hard-pressed to claim victory, he is in a substantially better position than after his first conviction. In his first trial, Hurwitz was found guilty of 50 of 62 felony counts, including causing the death of one patient and injury to two others. He was sentenced to 25 years by Judge Leonard Wexler, five more than the mandatory minimum he faced for the patient death. In the current case, the number of convictions against him has shrunk dramatically, the counts of patient death and injury were dismissed, and while he theoretically faces up to 320 years in prison, none of the counts carry a mandatory minimum sentence.

He may also fare better before Judge Brinkema, who has demonstrated fairness from the bench. That's in contrast to the judge in his original trial, the irascible Leonard Wexler, whose performance during the first Hurwitz trial raised serious questions about his fairness and objectivity.

While prosecutors portrayed Hurwitz as little more than a drug dealer, pain patients and their advocates saw him as a brave and heroic figure who prescribed necessary drugs for patients with nowhere else to turn.

The case "is not about the lawful practice of medicine... but rather about the unlawful drug trafficking of pain medication," said US Attorney Chris Rosenberg. "Drug traffickers come in all shapes and sizes. This one just happened to wear a white coat and be a doctor."

But Richard Sauber, a lawyer for Hurwitz, said defense attorneys are "disappointed in the verdict. We think that Dr. Hurwitz was a doctor first and foremost and not a drug dealer." He added that Hurwitz "saved a number of lives."

New York Times science reporter John Tierney, who has covered the trial in great detail on his TierneyLab blog, spoke with several jurors after the verdict was announced and reported that "they said that the jury considered Dr. William Hurwitz to be a doctor dedicated to treating pain who didn't intentionally prescribe drugs to be resold or abused. They said he didn't appear to benefit financially from his patients' drug dealing and that he wasn't what they considered a conventional drug trafficker."

Then why did they find him guilty of "knowingly and intentionally" distributing drugs "outside the bounds of medical practice" and engaging in drug trafficking "as conventionally understood"? Tierney asked. "After attending the trial and talking to the jurors, I can suggest two possible answers: 1. The jurors were confused by the law. 2. The law is an ass (to quote Mr. Bumble from 'Oliver Twist')."

The law may be an ass, but it's enough to send Dr. Hurwitz to prison for the rest of his life. The verdict is a victory for federal prosecutors in their war on what they regard as excessive prescribing of pain medication. Chronic pain patients are unlikely to be as pleased.

The judge presiding over the retrial of prominent Northern Virginia pain specialist Dr. William Hurwitz has dismissed the most serious charges against him. On Wednesday, as the defense rested in the month-long retrial, Judge Leonie Brinkema granted a defense request to dismiss charges of causing bodily injury or death. Hurwitz still faces dozens of drug trafficking counts linked to his pain management medical practice.

Dr. Hurwitz in 1996

In dismissing the charges, Brinkema agreed with two arguments advanced by the defense. First was that prosecutors had not proven the pain relievers prescribed by Hurwitz caused death or injury. Second was that the US Supreme Court in its decision upholding Oregon's right to die law last year ruled that federal drug laws did not give the Justice Department the power "to define general standards of medical practice."

That is precisely what federal prosecutors have done in dozens of cases like Hurwitz's. Prosecutors repeatedly -- and often successfully -- argued that doctors prescribing high dose of opioid pain relievers were outside the bounds of "accepted medical practice," and thus drug dealers, not doctors.

Now it will be more difficult for prosecutors to win a new conviction against Hurwitz. They must show that he knew the drugs he prescribed would be resold or abused and prescribed them anyway. Hurwitz has steadfastly denied that. Now prosecutors will have to prove that his problem patients were so obviously drug addicts and dealers that he had to have known his prescriptions were being diverted.