The arrest of Northern Virginia pain management specialist Dr. William Hurwitz late last week on drug dealing charges has galvanized the scattered but growing opposition to the US Justice Department's aggressive pursuit and prosecution of doctors who, in line with accepted medical practice, prescribe large quantities or high doses of opioid pain relievers to patients with severe, intractable pain. Hurwitz is only the latest in the growing list of doctors being hauled off in handcuffs as DEA agents ransack their medical records.
[Editor's Note: Not anymore. On Tuesday, police in Broward County, Florida, arrested two doctors for trafficking in Oxycontin after undercover agents were prescribed drugs. The investigation included various Florida law enforcement agencies and the FBI.]
Dr. Hurwitz was arrested on a 49-count federal indictment charging him with conspiracy to traffic drugs, drug trafficking resulting in death or serious injury, engaging in a criminal enterprise, and health-care fraud. He faces life in prison. The arrest came as part of "Operation Cotton Candy," a two-year federal investigation targeting prescription drug diversion. Federal investigators all but named Dr. Hurwitz as a suspect months ago, and Hurwitz had closed down his practice last December, telling DRCNet he wanted his patients to have a chance to find new doctors before the government came after him (http://stopthedrugwar.org/chronicle/252/drhurwitz.shtml).
In court appearances last week and Monday, federal prosecutors likened Dr. Hurwitz to a "street-level crack dealer" and called him a doctor who "dispensed misery and death," but supporters of the much-investigated pain specialist had a much different view.
On Monday, some of them held a press conference at the National Press Club in downtown Washington, DC, just across the Potomac River from where Hurwitz used to practice and blocks from Justice Department headquarters. Called by the Pain Relief Network (http://www.painreliefnetwork.org) and also featuring representatives of physicians' and patients' groups including the Association of American Physicians & Surgeons (http://www.aapsonline.org), the American Pain Institute (http://www.americanpaininstitute.org), the Juneteenth Medical Commission, and National Foundation for the Treatment of Pain (http://www.paincare.org), the assembled allies and reporters heard speaker after speaker endorse Dr. Hurwitz, denounce the heavy-handed approach of the Justice Department, and decry the fact that, in part because of federal prosecutions of pain doctors, millions of Americans are living with untreated pain.
"We are here to say we support Dr. Hurwitz and others targeted like him," said Kathryn Serkes, spokeswoman for AAPS. "These prosecutions should not be occurring, and we will help Dr. Hurwitz become a doctor again when this is over... These doctors who treat chronic pain patients are heroes, not criminals."
"The Department of Justice brings sham expert testimony that directly contradicts established medical standards into these courtrooms. By making good medicine answer to bad, before a lay jury, after the DOJ has destroyed the physician in the press, is an absolute outrage and must be stopped at once," said the Reverend Dr. Ronald Myers, founder and president of the American Pain Institute. "The devastation wrought in the lives of the patients is unfathomable."
"This is science versus superstition," said the Pain Relief Network's Siobhan Reynolds, a key mover in mobilizing a response to the wave of doctor arrests. Her ex-husband had been a patient of Dr. Hurwitz. "The Justice Department is misidentifying pain doctors all over the country as drug dealers. What they are enforcing is a national public health catastrophe in pain."
The American Pain Foundation also identifies the under-treatment of chronic pain as a major health problem facing Americans. "More than 50 million Americans -- men, women, and children -- live with serious chronic pain that interferes with their personal, social, and work lives," the foundation noted last year. "Although we now have the medical knowledge to manage most pain, most goes untreated, is under-treated, or is improperly treated."
The patient and physician advocacy groups are the most vocal, but concern about federal excesses has now spread to the most prestigious physicians' organization in the county, the American Medical Association. In July, the AMA passed a "resolution of concern" about the prosecutions of pain doctors and said it planned to tell the Bush administration it opposes the use of federal criminal prosecutions to go after doctors prescribing opioid pain killers. And while the organization has been quiet on the issue since then, spokesman Ross Fraser told DRCNet the AMA continues to monitor the situation. "There are thousands of people living in pain out there and that pain is not being relieved, and at the same time you have these doctors going to jail," he said. "The balance is wrong."
The concern extends to leading medical ethicists as well. David Brushwood, a professor of Pharmacy Health Care Administration at the University of Florida and Mayday scholar for the American Society of Law, Medicine, and Ethics, who told DRCNet the aggressive law enforcement approach is recent. "I am confused about why this is going on," Brushwood said. "There used to be a collaboration between regulators and health care providers where potential problems would be addressed. That has now turned into confrontation. Instead of discussing potential problems, law enforcement is conducting surveillance, allowing the problems to become more severe, than unmercifully charging these doctors with offenses that are disproportionate to the action that occurred," he explained.
"This is a radical approach that permits a bad situation to get worse and worse and worse," said Brushwood. "And then they charge hundreds of counts of serious violations, first-degree murder, manslaughter. This is a new development and an extreme response. It has evolved within the last two or three years."
Brushwood wouldn't name names, but the DEA identifies prescription drug abuse, particularly around the time-release opioid Oxycontin, as a major concern and fingers doctors and pharmacists for being responsible for the diversion of prescription drugs into the black market. And US Attorneys in the Justice Department have made prosecuting what they refer to as "pill mill" doctors a priority.
"It is open warfare, it is the Ashcroft Justice Department," said Siobhan Reynolds, not shying away from identifying the foe. "Ashcroft is not only trying to destroy an independent judiciary, or its vestiges, he is also after the autonomy of medicine."
Doctors who have been on the receiving end of law enforcement's tender mercies share that view and are developing a jaundiced view of the criminal justice system. [Editor's Note: Welcome to the war on drugs.] Dr. Joseph Talley is a North Carolina physician whose practice was shut down by the state medical board for "reckless overprescription" -- one of more than 800 doctors who have been disciplined by medical boards over opioid pain management prescriptions, according to AAPS. Talley is disillusioned. "I'm a veteran," he told DRCNet. "I served my country proudly. Now I feel like I don't have a country." Talley remains under investigation by the DEA, he said. "I could be next."
Talley could face murder or manslaughter charges because some of his patients died, as well as the now standard drug trafficking charges. "Doctors have patients who die," Talley groaned. "They may have to face a medical board, but they shouldn't being treated like criminals."
For medical ethicist Brushwood, moving toward collaboration between health care providers and law enforcement is a necessity if pain patients are to get proper care. "This radical confrontational approach scares doctors into overly conservative practices," he said. "They don't want to be the next victims. You never know when you're under surveillance because law enforcement has decided not to collaborate in identifying problems," Brushwood added.
"We have been moving backward," Brushwood continued. "We need to regain ground. We need to begin by reestablishing early consultation between law enforcement and health care providers when something is amiss. If drug control sees people who are going to a doctor but are lying to obtain medications they shouldn't receive, don't keep it a secret from the doctor! Tell him. If that early consultation doesn't work, a second step would be to send in an informant with bogus symptoms and see if he gets the prescription. If not, if the doctor wouldn't prescribe, then it's over. If he does prescribe when he shouldn't, it should be referred to a panel of doctors who can provide law enforcement with some idea of the level of appropriateness of the practice," he suggested. "Only if the expert panel recommends a criminal prosecution should it take place."
AAPS has suggested something similar with its "Project Communicate and Cooperate," a three-point program to enhance cooperation between physicians and law enforcement. Doctors and cops could work together to report potential "drug seeking" patients, set up a review board to look at potential cases before charges are filed, and engage in mutual training, so law enforcement is kept up-to-date on pain treatment techniques.
Not all of Monday's speakers favored cooperating with the DEA, however. Dr. Myers, a clergyman as well as a physician, told the audience, "I'm a minister of the gospel, and I'm not interested in cooperating with the devil."
Given the inclinations of the Ashcroft Justice Department, even the smallest of concessions are not likely to be easily won. So the Pain Relief Network, AAPS, and the rest of their allies are gearing up for a political struggle -- and the Hurwitz case could well turn into a major battleground. "Both sides are lining up for this one," said Reynolds. "We're right next door to Washington and this case is so outrageous that I think we will be able to make this a time when everyone becomes aware of the federal schemers. We will be able to put this issue on the national agenda."
And the interested parties are beginning to come together, Reynolds said. "We are making a lot of progress now, and the further we go, the more the other pain groups and physicians' groups will feel the need to show some leadership and responsibility. So far, the major groups have been silent on the issue of criminal prosecutions of pain doctors. That is unfortunate, and it gives the Justice Department the false impression there is no opposition to this," she said. "There is. We're getting our arsenal together right now."
NOTE: DRCNet is seeking funding for a major project to help with the pain issue. Please contact David Borden at [email protected] or (202) 362-0030 if you have leads on potential major funding sources.