The trial of Northern Virginia pain management specialist Dr. William Hurwitz wound to an end this week, and Hurwitz' fate is now in the hands of a federal jury. Federal prosecutors are seeking to send the nationally known doctor to prison for life on charges he improperly prescribed opioid pain relievers to a tiny minority of his patients and that two patients died as a result of his prescribing. The 62-count indictment alleges Hurwitz led a conspiracy to traffic in pain medications including Oxycontin, Dilaudid, and methadone. Supporters of Dr. Hurwitz and pain management tensely await a verdict.
"The indictment tells the story of someone who crossed over from a self-proclaimed healer to a drug dealer," Assistant US Attorney Mark Lytle told the jury during opening statements. "Dr. Hurwitz was playing the role of an illegal drug supplier."
Hurwitz's attorneys, naturally, disagreed. "This case is not about drug dealing," said San Francisco-based defense attorney Patrick Hallinan. "This is a case about new science: the treatment of chronic pain with high opioid doses to ameliorate that pain."
Despite the best efforts of the prosecution, what emerged from a month of testimony from prosecution witnesses was evidence that a small number of Hurwitz' patients, including tightly-knit family groups, systematically lied to the doctor about their symptoms in order to receive pain medications, then turned around and either abused them or resold them or both. Those former patients had themselves been arrested on drug charges and testified against Hurwitz in hopes of receiving lighter sentences, they told the court.
The trial of Dr. Hurwitz has taken center stage in an increasingly public fight between pain relief advocates and the federal drug law enforcement establishment. With hundreds of doctors having been prosecuted by the feds or the states or disciplined by state medical boards for what the Drug Enforcement Administration (DEA) considers to be not the practice of medicine but drug dealing, the DEA's recent game-playing about pain treatment guidelines (http://stopthedrugwar.org/chronicle/365/faq.shtml), and the Bush administration's recent push against what it calls a wave of prescription drug abuse, pain patient advocates complain bitterly that the 50 million sufferers of chronic pain in this country -- and the doctors who attempt to treat them -- are being sacrificed on the altar of the war on drugs.
"Because the DEA managed to arrest some of his patients and compel them to testify against him, Dr. Hurwitz is facing a life sentence," wrote Siobhan Reynolds, president of the pain patients' advocacy group the Pain Relief Network (http://www.painreliefnetwork.org). "The US Department of Justice is fully aware that Dr. Hurwitz did not intend to deal drugs. But that doesn't matter. They are trying to sell their 'drug diversion' story to Congress as a way to continue funding for their failed drug war," she told supporters.
And they were trying desperately to sell it to the jury this week as Dr. Hurwitz took the stand in his own defense. With an irascible Judge Leonard Wexler presiding, Hurwitz defense attorney Marvin Miller spent Monday reacquainting the jury with contemporary opioid pain management therapies, where patients sometimes take what appear to laymen to be outrageous amounts of high-octane pain relievers. "There is no clinical limit to the dose the patient may need for pain control," Hurwitz testified, explaining why he would sometimes write prescriptions for hundreds of Oxycontin tablets per day.
Defense attorneys backed up Hurwitz' assertion by entering into evidence the Virginia Medical Society's 1998 statement on opioid prescribing. "A doctor may prescribe in excess of the recommended dosage for medical necessity," the statement said. "Doctors shall not be in violation if they are dispensing medications in good faith."
Expert testimony by pain specialists Dr. Stratton Hill, founder of the pain management clinic at The University of Texas MD Anderson Cancer Center, and Dr. Lawrence Stinson of the Advanced Pain Centers of Alaska backed up the defense's contentions that prescribing large amounts of opioids fell within the confines of accepted medical practice for pain relief. Equally important, the experts rebutted efforts by prosecutors to imply that providing pain relief to people with substance abuse problems was in itself outside the scope of accepted medical practice.
"My God, if they prevail with that line of reasoning that if you prescribe to someone with a substance abuse problem you are somehow breaking the law, then anyone with a history of substance abuse better just reach for the aspirin bottle," said Mary Baluss of the Pain Law Initiative, who was attending the trial this week.
"Drs. Hill and Stinson both did very well," said Dr. Frank Fisher, a consultant for the defense who was himself victimized by overzealous prosecutors and spent five years establishing his innocence. "The important point they made is that Dr. Hurwitz made reasonable diagnoses and prescriptions for legitimate purposes and those prescriptions fell within the boundaries of accepted medical practice," he told DRCNet. "The Controlled Substances Act provides a 'safe harbor' for the medical use of opiates. The real issue here is the physician's intent. If the physician intends to help the patient and treat the disease, that is not criminal. By definition, the good faith practice of medicine is never criminal."
Prosecutors saved their last best shots to attack Dr. Hurwitz on cross-examination. Assistant US Attorney Gene Rossi conducted an antagonistic and aggressive cross-examination -- so much so that he was repeatedly rebuked by Judge Wexler to lower his voice -- but failed to dent Hurwitz's friendly and unruffled demeanor or his contention that he prescribed only for medically necessary reasons and had no knowledge that his prescriptions were being diverted to the black market by unscrupulous patients.
Hurwitz, who is also trained as a lawyer, did not allow himself to be penned-in by Rossi's leading questions and demands for a yes or no answer. Despite Judge Wexler's repeated admonitions to just answer yes or no, Hurwitz again and again refused to play along. "It's not a yes or no question," he said at one point before quickly explaining why.
Lacking any real evidence to show that Dr. Hurwitz was involved in a conspiracy to deal dope, Rossi attempted to sway the jury by hammering away at tangential but possibly prejudicial issues. Rossi described Dr. Hurwitz's web site, where he explained his practice to prospective patients as like a "neon sign" to attract drug abusers. Rossi made much of the fact that Hurwitz earned $300,000 in the last year of his practice, although such an income seems not unreasonable for a suburban Virginia physician. Rossi accused Dr. Hurwitz of laughing inappropriately in a secretly taped conversation with one patient turned federal snitch. Rossi accused Dr. Hurwitz of attempting to cover his tracks by asking relatives of a patient who had died of an overdose if she had committed suicide. "No, that is not correct," an unruffled Hurwitz countered. "I was trying to find out what happened to my patient."
The case against Dr. Hurwitz is the culmination of a two-year federal investigation into Oxycontin diversion in Northern Virginia. "Operation Cotton Candy" resulted in dozens of arrests and convictions, including those of former patients who testified against Hurwitz. Convicting a high-profile pain specialist like Dr. Hurwitz, who appears to be the primary target of the federal probe, would be a fine feather in the cap of prosecutors.
Dr. Fisher is convinced of Dr. Hurwitz's innocence and he hopes the jury will see it the same way. "The prosecutors promised the jury they would provide evidence that Dr. Hurwitz headed a criminal conspiracy to deal drugs, but what the evidence showed was really the opposite: These people, whom I would qualify as low-life scumbags -- and you can print that -- were in a conspiracy to scam him for pills. Every doctor gets scammed -- it's just a matter of degree," Fisher said. "But what it comes down to in this trial is intent on the doctor's part. There is not a hint he wanted anything diverted; when he found out definitely pills were being diverted he fired the patients."
Throughout the six-week long case, Dr. Hurwitz's former patients were present in the courtroom to offer their support. "This is just horrible," said Leigh Ann Franklin, who was treated by Dr. Hurwitz for eight years until he closed his practice in December 2002 saying he feared federal prosecution. "I have never met a more honest, compassionate, and dedicated physician," she told DRCNet. "I think this whole prosecution is a damned shame."
As of publishing time, no verdict had yet been announced. But dispatches from Frank Fisher have kept advocates around the country informed of some of the details. After Thursday's closing arguments, Fisher sent out the following comments:
"Mr. Hallinan's closing statement was a magnificent performance. He described how a sophisticated gang of predators took advantage of a well-intentioned pain doctor, and how the government conspired with them to help them take him down. The jury sat riveted at the edge of their seats. Mr. Hallinan owned the courtroom for almost an hour. This was one for the ages. I am still blown away by the force of it. The US Attorney on the other hand, while conceding that Dr. Hurwitz had many legitimate patients, attempted to demonize him as the criminal mastermind of a drug dealing empire that stretched all across the southeastern United States, spreading misery and death as far as London, Kentucky. Mr. Rossi also accused Dr. Hurwitz as having taken delight in getting away with the killing of a number of his patients over the years, by outsmarting the DEA."
Later Thursday, Fisher posted, "So far, [the jury has] asked one question. They want to know if it is legal to prescribe opioids to a pain victim who is also addicted. The defense proposed that the jury be instructed that this is legal as long as the physician prescribes opioids for the purpose of treating the pain. The government objected to this, and prevailed upon the judge to make an instruction that effectively obfuscates this simple issue."
Early this afternoon (Friday 12/10), Fisher wrote, "The jury is still out. Today, juror #12 requested to be relieved of duty because of the illness of a family pet. Judge Wechsler granted his request without consulting with defense attorneys. This capricious action represents an abrogation of Dr. Hurwitz' due process rights. The defense team objected, and moved for a mistrial. Their motion was not granted, and Judge Wechsler issued a further ruling, requiring the attorneys to wait at the courthouse for a verdict, rather than in the comfort of their apartment five minutes away."