Hurwitz convicted

[Chmee]

Trust Busters

A pain doctor's drug trafficking conviction sets a chilling precedent

Jacob Sullum



I have to admit I'm impressed by the achievement of the federal prosecutors who call McLean, Virginia, pain doctor William Hurwitz "a major and deadly drug dealer." Although the evidence they presented in his trial made it clear Hurwitz was not a drug trafficker, they still managed to convict him of drug trafficking.

The prosecutors did not dispute that Hurwitz had helped hundreds of patients recover their lives by prescribing the high doses of narcotics 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 were misusing the painkillers he prescribed, selling them on the black market, or both.

The prosecutors did not claim Hurwitz, who faces a possible life sentence, got so much as a dime from illegal drug sales. Instead they pointed to his income as a physician, which they said was boosted by fees from patients who were faking or exaggerating their pain.

The prosecutors did not allege that Hurwitz had any sort of explicit arrangement with those patients. Instead they described a "conspiracy of silence," carried out by "a wink and a nod."

The evidence supporting this theory was, not surprisingly, ambiguous at best, leaving plenty of room for reasonable doubt. Yet the prosecutors got the jury to overlook the obvious weaknesses in their case 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 pain who suffer needlessly 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 take advantage of 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: that 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 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 the lies they told: 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 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"?

Hallinan conceded that Hurwitz may have displayed "a degree of naiveté" and "even foolishness" in accepting some of his patients' stories. But he persuasively portrayed Hurwitz as "the perfect mark for these people": a doctor dedicated to helping patients in pain and reluctant to cut them off even if they misbehaved.

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 Hurwitz's courageous compassion.

More to the point, the jury was not supposed to determine whether Hurwitz was a good doctor; that's an issue for the state medical board. The jury was supposed to determine whether Hurwitz intentionally fed the black market in opioids. Since the evidence indicated that he prescribed in good faith, with the intent of treating pain, convicting him of drug trafficking sets 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?

A shame. Not only does it seem like Hurwitz did not do anything deserving of punishment, but all the patients out there who suffer from chronic pain requiring larger than normal doses of painkillers are that much less likely to get it (how willing are doctors going to be to prescribe when facing possible DEA prosecution?).

[Ashur]

Read the article despite swearing to never read another Sullum piece.

Proof that you can convince a jury of anything.

Very sad day for the medical profession

[Fash]

uhh... that's very disturbing...

such a fucking crock of shit too.....

i hope this guy appeals his sentance and the second jury sees the story from the angle this article presented.

ya know they still sell 'ephedrine' shit at convenient stores with a 'no more than 2' rule, because people make methamphetimines with it.... so instead of curbing it, they just spread out the income to all the convenient stores since people will just go to every local store and grab 2 each. too many double standards... how much time and money did they spend to put this seemingly-innocent doctor on trial?

[Siji]

The high amount of money that most doctors make for a living isn't nearly enough to convince me to want to put up with the bullshit they have to or jump through the hoops that they have to.

This is also another example of why I think our justice system is completely fucked up. Whatever happened to innocent until proven guilty? And guilty beyond a reasonable doubt? How do you not have a reasonable doubt on something like this? These days people are going to prison or getting death sentences for crimes, that there's no hard evidence of. None. Zero. Nadda. How the fuck is there no reasonable doubt in those cases?

Edit: "ya know they still sell 'ephedrine' shit at convenient stores with a 'no more than 2' rule" -- actually you shouldn't see ephedra for sale at all anymore. I believe the ban went into effect sometime around April I believe. It's not illegal to possess it, just to sell/buy it. (Think that's correct) Anyway, the products in the convenience stores are similarly named, or even using the same names, but the ephedra should be replaced with something else now. Yohimbe is a good example as its still legal.

[Tyek]

I am on pain meds a lot for my arthritis and stuff like this scares me. Some days it is hard enough to walk around or get out of bed, now some jackass trying to score points is putting doctors in jail for helping me? Now he has to look at me and wonder, "is he really in that much pain?"

What does this say about the state of things here when guys like Lenard Little kill someone while drunk and get to continue playing football. Little got arrested for DUI again and he is still free, but this guy does his job and may spend his life in jail?

[Zaelath]

Gotta love the jury system... I'd love to read the transcripts of the closings (at least)

[Kylere]

Too many doctors hand out major drugs without serious consideration being given, that is wrong, but the prosecution in this case is thin, he should have lost his license to dispense, not been charged as he was.