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Chilling Conviction
Pubdate: Mon, 27 Dec 2004
Source: Washington Times (DC)
Copyright: 2004 News World Communications, Inc.
Contact: http://www.washingtontimes.com/
Details: http://www.mapinc.org/media/492
Author: Jacob Sullum
CHILLING CONVICTION
I have to admit I'm impressed by the achievement of the federal prosecutors
who call McLean, Va., pain doctor William Hurwitz "a major and deadly drug
dealer." Though the evidence at his trial made it clear Dr. Hurwitz was not
a drug trafficker, they still managed to get him convicted.
The prosecutors did not dispute Dr. Hurwitz had helped hundreds of patients
recover their lives by prescribing the high doses of opioids they needed to
control their chronic pain. Instead they pointed to the small minority of
his patients - 5 to 10 percent, by his attorneys' estimate - who
misused the drugs, sold them illicitly, or both.
The prosecutors did not claim Hurwitz, who could receive a life sentence,
got even a dime from illegal drug sales. Instead they cited his physician
income, which they said was boosted by fees from patients faking or
exaggerating their pain.
The prosecutors did not allege Dr. Hurwitz had any explicit arrangement with
those patients. Instead they described a "conspiracy of silence," carried
out by "a wink and a nod."
The evidence was, unsurprisingly, ambiguous at best, with plenty of room for
reasonable doubt. Yet prosecutors got the jury to overlook their case's
obvious weaknesses and convict Hurwitz, in essence, of trusting his patients
too much.
That verdict sends a clear message to doctors that it's better to err on the
side of suspicion. Knowing they could be prosecuted for believing a patient
who turned out to be an addict or a dealer, doctors will be even less
inclined to take the risk, compounding the already appalling problem of
people in needless pain because physicians are afraid to help them.
Hurwitz was not afraid, which is why desperate patients flocked to him.
Inevitably, he also attracted people who sought to exploit his compassion.
Yet none of the surreptitiously recorded conversations with
patients-turned-informants that the prosecution presented included any
acknowledgment of the conspiracy Hurwitz supposedly led.
To the contrary, the testimony of former patients convicted of drug dealing
tended to confirm his defense: He was tricked by "predators" who always knew
the right thing to say to get more drugs and who bragged about how they had
won his trust. One former patient said Dr. Hurwitz's concern for his
patients was his vulnerability; another recalled using makeup to cover
injection marks on his arm and smoking crack before appointments so he would
not seem suspiciously sleepy. All described their lies: complaints of
unrelieved pain, reports of lost prescriptions, explanations for brushes
with the law.
If there was a conspiracy, defense attorney Patrick Hallinan asked, "Why
would you have to lie?" And if Dr. Hurwitz and his patient-dealers were in
cahoots, why would he carefully record all the potential signs of trouble
the prosecution would later cite as evidence of his "head-in-the-sand
attitude"?
Mr. Hallinan conceded Hurwitz may have had "a degree of naivete" and "even
foolishness" in accepting some of the stories. But he persuasively portrayed
Dr. Hurwitz as "the perfect mark for these people": dedicated to helping
patients in pain and loath to cut them off even for misbehavior.
Prosecutors repeatedly invited the jurors to judge Hurwitz's performance as
a doctor, suggesting he was arrogant, negligent and indifferent to his
patients. That portrait was belied by the testimony of patients who are
eternally grateful for Dr. Hurwitz's courageous compassion.
More to the point, the jury was not supposed to decide if Hurwitz was a good
doctor; that's an issue for the state medical board. The jury was supposed
to determine if Hurwitz intentionally fed the black market in opioids. The
evidence indicates he prescribed in good faith, intending to treat pain, and
so his drug trafficking conviction is a chilling precedent.
Writing in USA Today during Hurwitz's trial, Karen Tandy, head of the Drug
Enforcement Administration, said, "Doctors acting in good faith and in
accordance with established medical norms should remain confident in their
ability to prescribe appropriate pain medications."
Notice that "good faith" is not enough to keep the DEA at bay. Doctors also
have to prescribe "in accordance with established medical norms," as
determined by the DEA, and prescribe only those medications and dosages the
DEA deems "appropriate."
With reassurances like that, who needs warnings?
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