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.

Dr. Hurwitz in 1996 (photo courtesy Skip Baker)

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."

Federal judges are much more likely to acquit defendants than juries are, according to a review of some 77,000 federal criminal trials between 1989 and 2002. Juries convicted 84% of defendants, while judges in bench trials convicted only about half. The phenomenon is recent, with judges and juries convicting at about the same rate from the 1960s through the 1980s, and prior to that, judges were much more likely to convict than juries.

"The core problem," he wrote, "is to find something about criminal trials that has changed since the late 1980s, something that would affect judges but not juries." The evidence suggests a likely culprit, Leipod argued. "I think the sentencing guidelines best fits this description. The guidelines took away a huge amount of sentencing discretion, which meant that judges were more often faced with cases where they knew that a conviction would result in a harsh - maybe too harsh - sentence. We don't have to say that judges were acting 'lawlessly' to reach the unremarkable conclusion that judges may hold the government even more tightly to its burden of proof when the stakes are high and unforgiving."

Because judges do not fill out forms showing what factors they weigh when they rule, any evidence of a link between conviction rates and the sentencing guidelines is necessarily indirect, but, Leipold notes, it is probably not coincidence that "with the Guidelines really hitting stride just as the judicial conviction rate started to slide." Many judges "were harshly critical of the how the guidelines made it harder for them to do justice in individual cases," he noted.

[Editor's Note: One might suppose that mandatory minimum sentencing is also having this effect on federal judges -- an equally, sometimes harsher federal sentencing system that is parallel to and interlocks with the guidelines. Congress enacted mandatory minimums very hastily, two years after creating the sentencing guidelines, following the 1986 overdose death of University of Maryland basketball star Len Bias.]