Pain doctor again found guilty of drug trafficking
■ A "good faith" jury instruction is not enough to free the polarizing physician.
The high-profile federal conviction of a Virginia physician who has long battled authorities over his controversial chronic-pain practice has some doctors worried that the guilty verdict might worsen patient access to adequate pain treatment.
William E. Hurwitz, MD, was found guilty on 16 counts of drug trafficking in federal court last month. The jury acquitted him of 17 other counts and was unable to reach a verdict on 12 counts that then were dismissed by Judge Leonie M. Brinkema. Citing a lack of evidence, the judge earlier dismissed the most serious charges involving bodily injury or death.
The closely watched verdict came less than a year after the 4th U.S. Circuit Court of Appeals overturned Dr. Hurwitz's 2004 conviction and 25-year sentence on the drug-trafficking charges, saying the judge in the original trial wrongly instructed the jury to ignore the physician's good-faith intent when deliberating the case.
Russell K. Portenoy, MD, said he was "pretty discouraged" by the outcome. Dr. Portenoy, chair of the Dept. of Pain Medicine and Palliative Care at Beth Israel Medical Center in New York and a past president of the American Pain Society, said that while criminal prosecutions of physicians for prescribing opioids are "extremely rare," this kind of spotlighted verdict makes doctors nervous.
"When the government decides to criminalize prescribing behavior, it has a profound effect on the prescribing by physicians of all types," said Dr. Portenoy, a pro bono expert witness in Dr. Hurwitz's defense. "It could lead to even greater reluctance to prescribe opioids in this country, and that leads to undertreated pain."
American Academy of Pain Medicine President B. Todd Sitzman, MD, though, said the second guilty verdict for Dr. Hurwitz will not change many doctors' approach to treating chronic pain: "The ripple effect of the Hurwitz case on physician prescribing practices has already occurred."
Consequently, educating physicians about the legal and clinical aspects of pain medicine has never been more important, he said. The Academy is offering a continuing medical education seminar in November, "Opioid Therapy: Safe and Effective Prescribing."
Legal experts said the line between legal and illegal prescribing activity appears grayer than ever in light of the jury's decision.
"It is very hard ... for a jury that is allowed to hear evidence that a practitioner's conduct is very poor to understand that even really poor judgment is not evidence of criminal intent," said William L. Marcus, a retired deputy attorney general with the California Dept. of Justice and a pain management law expert.
Even the appeals court opinion that overturned Dr. Hurwitz's first conviction "allows evidence of honesty of purpose to be overcome by evidence that the doctor's prescribing, no matter how well and honestly intended, doesn't have what amounts to a recognized medical basis in the medical community," Marcus said. "And that invites evidence on standard of care ... and jury confusion."
One of Dr. Hurwitz's attorneys, Larry Robbins, agreed.
"The fundamental principles of law in this field are so uncertain and, I think, fundamentally flawed in a variety of ways, that it's exceedingly difficult for even the most conscientious of jurors to know what he or she is supposed to do in a case like this," he said. The defense team is considering whether to appeal the verdict.
Mary Baluss, a legal adviser to the National Foundation for the Treatment of Pain, said it appears that the jury did not make its distinctions based on the types or doses of medications Dr. Hurwitz prescribed but on his refusal to fire patients with substance abuse problems.
"What's troublesome about [the verdict] is that it makes practice management issues the critical distinction in the criminalization," she said.
Dr. Hurwitz has drawn scrutiny for the amount of opioids prescribed -- in one case, 1,600 pills to a single patient for a single day -- and for the types of patients he treated. Many chronic pain patients who struggled to find a doctor to prescribe high-dose opioid treatments traveled hundreds of miles to see him. But some patients deceived Dr. Hurwitz to get prescriptions for recreational use or diversion to the illegal market, news reports said.
Several jurors who wrote anonymously to New York Times columnist John Tierney said the guilty verdicts came in instances where patients had "red flags" such as drug trafficking arrests or several consecutive positive tests for illegal drugs. The jury heard evidence about 44 different prescriptions written for 19 different patients.
One juror said the guilty verdicts were based on "a continuous, deliberate effort to ignore that [Dr. Hurwitz's] patients were using these drugs recreationally or selling them."
The verdict comes at a time when recreational use of prescription drugs is on the rise, said the White House Office of National Drug Control Policy. A majority of teens who abuse prescription drugs get them from friends and relatives, the agency said. Shipments of oxycodone to pharmacies increased by 175% between 2000 and 2006.
AMA policy says that "physicians who appropriately prescribe and/or administer controlled substances to relieve intractable pain should not be subject to the burdens of excessive regulatory scrutiny, inappropriate disciplinary action, or criminal prosecution."