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Feature: Pain Doctor William Hurwitz to Get New Trial

In a closely watched case with national implications, a federal appeals court has granted a new trial to a well known Northern Virginia pain doctor sent to federal prison for 25 years as a drug dealer. Pain patient advocates and medical associations praised the ruling in the case of Dr. William Hurwitz, who was convicted in late 2004 of 50 counts in a 62-count indictment, including conspiracy to distribute controlled substances.

Hurwitz appealed his conviction, arguing that trial Judge Leonard Wexler erred by not instructing the jury that Hurwitz should not be convicted if he acted in "good faith." Typically in cases where the quality of medical care is in question, such matters are decided by medical boards or civil courts in the form of malpractice suits. Only doctors who are not prescribing in good faith that they are in line with accepted medical practices face criminal charges. In his jury instructions, Judge Wexler removed Hurwitz' only effective defense.

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Dr. Hurwitz in 1996 (photo courtesy Skip Baker)
For federal prosecutors, who pointed to multiple examples of high-dose prescriptions Hurwitz had written and who claimed he should have recognized some of his patients to be addicts or dealers, Hurwitz was nothing more than a Dr. Feelgood, no different from -- or perhaps worse than -- the kid slinging crack on the street corner. But for patient advocates and a growing number of medical professionals, the case was the highest-profile example yet of a Justice Department and DEA creating a chilling climate toward doctors' willingness to treat chronic pain with opioid pain medications.

That is why even though even some questioned Hurwitz's prescribing practices, his appeal nevertheless won the support of professional organizations like the American Academy of Pain Medicine, the American Pain Foundation, and the National Pain Foundation, all of which filed briefs in his support. Also joining the fray was the Drug Policy Alliance, which filed its own brief on behalf of pain specialists.

A three-judge panel in the 4th US Circuit Court of Appeals in Richmond agreed with Hurwitz and his allies in its opinion Monday. The panel held that Judge Wexler had erred when he told jurors they could not consider whether Hurwitz had acted in "good faith" when he prescribed large doses of opioid pain relievers like Oxycontin to patients.

"A doctor's good faith in treating his patients is relevant to the jury's determination of whether the doctor acted beyond the bounds of legitimate medical practice," wrote Judge William Traxler. "The district court effectively deprived the jury of the opportunity to consider Hurwitz's defense." That was a fatal error, the panel held. "We cannot say that no reasonable juror could have concluded that Hurwitz's conduct fell within an objectively-defined good-faith standard," wrote Traxler.

"We are very gratified by this decision," said Dr. Jane Orient, executive director of the libertarian-leaning Association of American Physicians and Surgeons, a group that has been in the vanguard of the medical profession on the issue of protecting pain doctors and patients. "Overturning one of these verdicts is something that almost never happens, and we hope it represents a tipping point," she told DRCNet. "We hope that the courts will finally begin to pay attention to the fundamental issues of justice involved here. A doctor is not a drug dealer, and neither is he a policeman. Doctors cannot be held responsible for patient misbehavior."

"I'm delighted," said Dr. Frank Fisher, a California physician originally charged with five counts of murder over his prescribing practices by overzealous prosecutors and state agents, but who was eventually completely exonerated. "This means they will have to let Billy out. The appeals court was absolutely correct in its decision," he told DRCNet.

The appeals court decision is a victory for Hurwitz and his supporters, but it is only one battle in a larger war over who controls the prescribing of pain medications -- the medical profession or the cops -- and in the meantime, doctors and patients are the casualties.

"They are still harassing and investigating doctors," said Orient. "And that in itself can destroy your practice. There are still doctors languishing in prison because they tried to do their best for their patients and there are still patients having difficulty finding physicians willing to do the pain treatment necessary to make them functional instead of bed-ridden suicidal people in severe pain," she said. "More doctors are aware of the extreme risk they take in getting involved with chronic pain patients. The DEA wants them to treat patients like they were suspected criminals."

Fisher pointed to the case of Dr. Richard Heberle, an Ohio physician, of how devastating even defending oneself from such charges can be. "Look at what happened to Dr. Heberle," he said. "He won, but his practice is ruined, his reputation is ruined, his life is ruined. The only thing worse than winning one of these cases is losing one, or maybe coming down with a bad case of chronic pain."

Don't Go to Indiana

From the Tribune-Star in Terre Haute, Indiana:
The Vigo County prosecutor’s office, the Terre Haute Police Department and Vigo County Sheriff’s Department will be conducting intermittent driver’s license checks at an undisclosed location in Vigo County.

When I hear that Indiana police are conducting “driver’s license checks”, my constitutional spidey-sense goes off. Afterall, these are the folks who brought us the drug checkpoint. And when that got overruled by the Supreme Court, they came out with the similar, but more sinister “fake drug checkpoint.”

And just when I’m getting ready to connect the dots, the Tribune-Star does it for me:

The checkpoint is also known as a highway interdiction operation, something that has been challenged in courts on the grounds that it may violate the Fourth Amendment prohibition against illegal search and seizure.

So at least we can agree that this is about drug interdiction rather than driver’s licenses. But the Tribune-Star is a bit off on the caselaw. The above quote should read:

The checkpoint is also known as a highway interdiction operation, something that has been overruled by the Supreme Court on the grounds that it does violate the Fourth Amendment prohibition against illegal search and seizure.

Though technically a win for the 4th Amendment, City of Indianapolis v. Edmond has a loophole in that it only prohibits checkpoints implemented for the “primary purpose” of drug interdiction. That’s why police can set up checkpoints on the pretext of checking driver’s licenses, and then proceed to march drug-sniffing dogs around your car in circles as you fumble for your documents.

Thanks to the Court’s recent decision in Illinois v. Caballes, dog-sniffs are impossible to challenge on 4th Amendment grounds if administered during the course of an otherwise legitimate law-enforcement activity, so these thinly-veiled drug checkpoints will be hard to challenge.

For that matter, I’m not sure we should even push this issue given our current Court’s attitude towards the 4th Amendment.

Instead, let’s just stay the hell out of Indiana.

Localização: 
United States

Search and Seizure: Five-Day Shackling in Colorado Prison to Find Swallowed Drugs Approaches Torture Level

Authorities at the Colorado state prison in Buena Vista kept an inmate shackled to a chair for five and ½ days without sleep or exercise, never turned off the lights, and strip-searched and cavity-searched him 17 times even though he was under the constant watch of a guard. Prison officials suspected inmate Brian Willert, 29, of swallowing bags of heroin and wanted to collect the evidence.

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They eventually did, but the judge hearing the case, Chaffee County District Court Judge Charles Barton, threw out the evidence, saying that prison authorities could have achieved the same goal in a few hours by obtaining a court order to administer a laxative. What prison officials did to Willert was an unreasonable search, Barton held.

"Forcing a shackled inmate to sit in a chair for over five days posed, in the court's opinion, an unreasonable risk to the life and health of the inmate," Barton said in his July 14 ruling. "It is difficult for the court to imagine a more intrusive procedure. Defendant was watched every minute for over five days. He was not permitted to meet the basic human need to lie down and sleep."

Barton also questioned what the repeated strip searches had to do with security and criticized prison officials for failing to check on Willert's health after he tested positive for methamphetamine on day four, suggesting a balloon had broken. But Barton rejected Public Defender Patrick Murphy's contention that what was done to Willert constituted cruel and unusual punishment.

Willert was placed in a "dry cell" without a sink or toilet after his girlfriend told prison authorities she had passed balloons of what she thought was heroin to him during a visit. That is standard procedure for the Colorado Department of Corrections, director of prisons Gary Golder told the Rocky Mountain News. But "dry cell" stays rarely last more than a day, he said. Still, Golden said, the department's inspector general will investigate. "Did the staff violate the policies or do something inappropriate?" he asked.

Inmate Shackled Five Days: Prison Officials Believed Man Had Swallowed Heroin

Localização: 
United States
Publication/Source: 
Rocky Mountain News
URL: 
http://www.insidedenver.com/drmn/local/article/0,1299,DRMN_15_4868291,00.html

Editorial: Not Playing by the Rules, Not Making Sense

David Borden, Executive Director, 7/14/06

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David Borden
Call me old fashioned, but I like it when rule-makers play by the rules. I like it when the law corresponds to reality, both in wording and interpretation. I like it when laws make sense.

I don't like it when legislators thumb their noses at their constitutions to enact laws they know don't pass muster. Unpopular Alaska Gov. Frank Murkowski's marijuana re-criminalization bill, partially struck down by a Superior Court judge this week based on the state Supreme Court's standing word, is a good example. The bill signed by California Gov. Arnold Schwarzenegger to change California's initiative-enshrined treatment-not-jail law in ways that contradict the voters' choice is another.

As worrisome as methamphetamine recipes floating around the Internet may be for some, the bill signed by Michigan Governor Jennifer Granholm aiming at those almost certainly flouts the First Amendment. Are they going to sue publishers of online, academic chemistry texts that happen to include information on this legally-prescribable schedule II substance?

I don't like "legal fictions" -- definitions in the law that have to then be dealt with as if they were real when in fact they're not. The much criticized asset forfeiture laws, in many of which a mere object is the entity that gets accused of the crime (allowing the government to take property from innocent owners) rely on that fiction for their justification. Another such fiction is laws in 21 states, including another from Michigan, that categorically equate certain drug activity with child abuse -- whether a child was actually abused or not.

It's important to remember that child abuse laws are already on the books -- if a child is getting abused, some form of intervention by the law to address the situation is appropriate. But if a parent, for example, takes some methamphetamine while at home in order to stay up late to meet a critical work deadline, but without acting aggressively or neglecting the family's needs, how is that child abuse? Many people take meth or similar drugs on prescription from their doctors for very similar purposes. Doing so without a prescription is illegal, and can certainly be disconcerting. Some meth users do become unstable or violent. But are the two situations really so very different -- inherently, by definition -- for the latter to qualify as child abuse, even if no actual abusive acts ever take place?

Even when meth is being manufactured, it's fictional to equate it with abuse categorically, the legitimate dangers of meth manufacturing notwithstanding. If chemicals are being handled in a way that subjects children to harm qualifying as abuse, and if it's done intentionally or with clear, willful recklessness, then it doesn't matter whether it's meth or another drug or the stuff in those bottles underneath your kitchen sink, it's still abuse (or perhaps endangerment). But the fact that it's a drug being manufactured is purely incidental.

It's not legal hair-splitting to say that, because applying the label of "child abuse" creates an appearance that the accused is a monster who probably belongs in jail and almost certainly shouldn't be entrusted with children. But that may not at all be the case; the user may be a responsible user who takes perfectly good care of the kids. The user may be addicted and need help, but never raise a hand against a son or daughter or place them in danger. Even the dealer or manufacturer may only be trying to get by in difficult economic circumstances -- the illegal activity may be what one is doing in order to provide better for the children. That's a sad circumstance, but it's a circumstance faced by many. Disconcerting, yes, but child abuse?

The most offensive thing about the California development is that it was a coalition of law enforcement groups and drug court judges who pressed for the bill. They don't like the restrictions Prop 36 put on them. But so what? They have the right to field their own counter-initiative (with private money, of course), if they think they could win it. They lost pretty badly the first time. But the voters spoke, and the state constitution says that counts.

I don't think our law enforcers -- judges, of all people -- should disrespect the constitutions whose tenets are intended to stand over and bind them. Though they claim to hold law in reverence, in this they have trampled it. Call me old fashioned, but I don't think that's good for our country.

Tennessee Judge Throws Out State's Drug Tax Stamp Law

Publication/Source: 
Associated Press
URL: 
http://www.wbir.com/news/regional/story.aspx?storyid=35986

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