Feature:
Chill
Over
Pain
Management
Deepens
as
Leading
Specialist
is
Sentenced
to
25
Years
in
Prison
4/15/2005
The most closely watched in a growing procession of prosecutions of doctors involved in aggressive pain management with opioids came to an end in a suburban Washington, DC, federal courthouse Thursday as presiding federal circuit court Judge Leonard Wexler sentenced Northern Virginia pain specialist Dr. William Hurwitz to 25 years in prison as a drug dealer for his prescribing habits. The sentence was more than the 20-year mandatory minimum sentence, but less than the life sentence sought by prosecutors. At Thursday's hearing, Judge Wexler said that Hurwitz deserved more than the minimum sentence because he continued to flout the law even though he had opportunities to "reform" his behavior. Hurwitz, who appeared in court in his jail uniform, will be transferred to federal prison pending the outcome of his appeal.
Also key in building the case against Dr. Hurwitz was the testimony of Dr. Michael Ashburn, who told jurors Hurwitz prescribed in quantities far beyond accepted medical practice. That testimony has since been harshly challenged by experts in pain management, including six past presidents of the American Pain Society, who, in a January letter to Judge Wexler, pronounced themselves "stunned" at the "errors" in Ashburn's testimony. The letter was not shown to the jurors. It is not known whether Judge Wexler responded to the doctors. In a hearing described by some witnesses as highly emotional and by one as a theater of the grotesque, the aggrieved family members of Dr. Hurwitz' patients who died called for a lengthy sentence, while other patients and Hurwitz family members pled for leniency. "People on both sides spoke from the heart in a very passionate, powerful way," said Eric Sterling, executive director of the Criminal Justice Policy Foundation, who attended the hearing. "In the case of family members, they spoke of the irreplaceable loss of loved ones; in the case of the defendant, they spoke of the caring, compassionate qualities of the defendant." It was if people were describing Dr. Jekyll and Mr. Hyde, said Sterling. "I was really struck by the bifurcated presentation of the defendant. On the one hand, he was described as a compassionate professional, on the other, he was described as a careless, callous, remorseless person." That wasn't the only stark contrast Sterling noted. "Witnesses and people in the courtroom were weeping, but the judge seemed very businesslike. I was struck by the contrast between the passion and emotion of the witnesses and the coldness of the law and the court." If there were contrasts, there were also erasures. "There was no sense that the people who died had any responsibility for their own addictions, their own choices. It was the doctor's fault," said Sterling, speaking of family members who called for stiffer penalties for Hurwitz. "These people created a convoluted causation where the fact that their relatives were addicts and pleaded for drugs didn't matter. Doctors are not miracle workers; the most brilliant doctor can't save a self-destructive risk-taker from killing himself." Defense attorneys moved in vain to have Judge Wexler exercise "safety valve" rules that would have allowed him to reduce Hurwitz' sentence, but Wexler, who was the real star of the hearing, did add five years to the 20-year minimum based on an audio tape he claimed to have listened to that was never entered into evidence. And with a scolding of Hurwitz by Wexler for having squandered opportunities, the hearing was over and Hurwitz was hustled back to jail. "The sentence is about what we expected," said Siobhan Reynolds, head of the patients and doctors advocacy group the Pain Relief Network. "I am concerned for Billy. It's one thing to be on the outside and say it's what we expected, given the brutality of the system, but what must he be feeling now? There is a collective madness at work here," she told DRCNet.
The case is the most closely-watched yet in an escalating confrontation between the imperatives of pain management and those of drug abuse control. For the past decade, the Justice Department and the Drug Enforcement Administration (DEA) drug diversion control program, ironically funded by doctors' licensing fees, has spent tens of millions of dollars annually to investigate doctors it suspects of improperly prescribing prescription drugs. Equally ironically, the diversion control fund also includes money from an asset forfeiture kitty that includes goods once belonging to doctors prosecuted by the DEA. With those funds, the DEA monitors the prescription writing of all doctors. Those who prescribe large doses of drugs such as Oxycontin are flagged for investigation. Typically, the feds find former or current patients who are abusing or selling prescribed drugs, charge them with federal crimes, then plea bargain with them to get them to testify against the targeted doctor. At trial, prosecution expert witnesses testify that the prescribing was outside the bounds of accepted medical practice, while defense witnesses testify it was not. Jurors, who may or may not have a firm grasp on the medical science involved, tend to come down on the side of prosecutors. While firm numbers are hard to come by, dozens -- if not hundreds -- of doctors have been tried, convicted, and sentenced as drug dealers in recent years, with the pace accelerating since drug czar John Walters declared prescription drug abuse a national menace last year. According to Dr. Joel Hochman, director of the National Foundation for the Treatment of Pain, the DEA has investigated some 1,800 doctors nationwide in the last three years, 1,200 of whom lost their licenses. The Justice Department is engaged "in a fruitless and bizarre effort to curtail the use of drugs, and has begun to eat its citizens and physicians," Hochman told the Los Angeles Times Wednesday. While doctors and pain patient advocates said Hurwitz' conviction and sentencing will only deepen the chill felt throughout pain management circles, Judge Wexler attempted to deflect physicians' concerns that they could be next, said Sterling. "The judge read a letter from a Florida pain management specialist who said he'd had a handful of patients fool him over the years and asked if he should now fear being prosecuted," Sterling related. "The judge said no, Hurwitz' practice was different. Hurwitz knew his patients were either getting high or selling the drugs or both, or else he was willfully blind. Honest doctors have nothing to worry about, the judge said." Critics weren't buying that argument. "These cases do have an impact," said Dr. Fisher, "and the impact from even a single case can be enormous. I was arrested in 1999, and the following year California had the lowest per capita Oxycontin prescribing in the country. I cannot imagine that my arrest did not influence that. Likewise, when Dr. James Graves got a 60-year prison sentence in Florida, all of a sudden there were no new pain clinics opening up, there were doctors closing their doors or throwing out their patients. Since then, it has become more and more difficult to find anyone who will treat a chronic pain patient." "We are already in a crisis," said Reynolds. "We get four or five emails every day from people with severe pain -- cancer, lupus, surgeries -- being cut off by their doctors for the slightest infraction of the rules," she said, referring to elaborate protocols doctors foist upon patients in hopes of avoiding trouble with the DEA. "The doctors are frightened, and the result is zero tolerance for human frailty. Doctors are afraid any attempt to ameliorate this zero tolerance will result in them being charged as criminals. Doctors have become extraordinarily harsh and brutal; people who were previously able to work are now bed-ridden. This has been going on for years, and it's only getting worse. Almost no one I know is getting decent pain treatment." Some advocates accused the federal government of bringing phony cases and using deceptive methods to prosecute them. "In the Hurwitz case, and in all the other trials I have observed, the government has never produced evidence that the accused doctor intended to divert drugs outside his professional practice or to profit from any such diversion," said Reynolds. "In the Hurwitz case, government lawyers have said that his conviction should stand even if he wrote the prescriptions in good faith. No wonder doctors all over America are putting down their pens." "Throughout the US, physicians are being threatened, impoverished, de-licensed and imprisoned for prescribing in good faith with the intention of relieving pain," said Dr. Jane Orient of the Association of American Physicians and Surgeons. "Law enforcement agents are using deceitful tactics to snare doctors, and prosecutors manipulate the legal system to frighten doctors who might be willing to testify on behalf of the wrongly accused doctors." "We have a real legitimate worry that there is going to be greater reluctance to prescribe pain medication and as a consequence more under-treatment of chronic pain," Dr. Russell Portenoy, chairman of the pain medicine department at Beth Israel Medical Center in New York, told the Times. With an estimated 50 million Americans suffered from under-treated chronic pain and doctors now running scared, the clash between law enforcement and medicine is bound to deepen. Doctors and pain patients are now beginning to pick up support from some unexpected places, including at least 30 state attorneys general, who, in a January letter to DEA administrator Karen Tandy, criticized the agency for improperly emphasizing stopping drug diversion at the expense of legitimate pain treatments. "As attorneys general who have worked to remove barriers to quality care for citizens of our states at the end of life, we have learned that adequate pain management is often difficult to obtain because many physicians fear investigations and enforcement actions if they prescribe adequate levels of opioids," the letter said. Dr. William Hurwitz is headed for prison, at least until his appeals are heard, federal prosecutors have scored another "victory" in their never-ending hunt for "dope dealer" doctors, physicians are running scared, and patients are finding it more and more difficult to obtain adequate care for chronic pain. But with the quality of life of some 50 million Americans at stake, this is a battle that is far from over.
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