NO RELIEF IN SIGHT
Jacob Sullum, ReasonOnline, 1997. Originally
posted: 12/17/2004; Modified: 2007-04-18
David Covillion finally got relief from his pain with the help of Jack Kevorkian. The pain came from neck and back injuries Covillion had suffered in April 1987, when his station wagon was broadsided by a school bus at an intersection in Hillside, New Jersey. The crash compounded damage already caused by an on-the-job injury and a bicycle accident. Covillion, a former police officer living in upstate New York, underwent surgery that fall, but it only made the pain worse. Along with a muscle relaxant and an anti-inflammatory drug, his doctor prescribed Percocet, a combination of acetaminophen and the narcotic oxycodone, for the pain.
The doctor was uneasy about the Percocet prescriptions. In New York, as in eight other states, physicians have to write prescriptions for Schedule II drugs--a category that includes most narcotics--on special multiple-copy forms. The doctor keeps one copy, the patient takes the original to the pharmacy, and another copy goes to the state. After a year or so, Covillion recalled in an interview, his doctor started saying, "I've got to get you off these drugs. It's raising red flags." Covillion continued to demand painkiller, and eventually the doctor accused him of harassment and terminated their relationship.
"Then the nightmare really began," Covillion said. "As I ran out of medication, I was confined to my bed totally, because it hurt to move....At times I'd have liked to just take an ax and chop my arm right off, because the pain got so bad, but I would have had to take half of my neck with it." He started going from doctor to doctor. Many said they did not write narcotic prescriptions. Others would initially prescribe pain medication for him, but soon they would get nervous. "I'd find a doctor who would treat me for a little while," he said. "Then he'd make up an excuse to get rid of me." Eventually, Covillion went through all the doctors in the phone book. That's when he decided to call Kevorkian.
The retired Michigan pathologist, who has helped more than 40 patients end their lives, was reluctant to add Covillion to the list. At Kevorkian's insistence, Covillion sought help from various pain treatment centers, without success. He called Kevorkian back and told him: "I'm done. I have no more energy now. I just don't have the fight. If you don't want to help me, then I'll do it here myself." Kevorkian urged him to try one more possibility: the National Chronic Pain Outreach Association, which referred him to Dr. William E. Hurwitz, an internist in Washington, D.C., who serves as the group's president.
The day he called Hurwitz, Covillion was planning his death. "I had everything laid out," he said. "I got a few hoses and made it so it would be a tight fit around the exhaust pipe of my car. I taped them up to one of those giant leaf bags, and I put a little hole in the end of the bag. All I had to do was start the car up, and it would have filled the bag right up, pushed whatever air was in there out, and it would have filled the bag up with carbon monoxide. Same thing as what Dr. Kevorkian uses. And then I had a snorkel, and I made it so I could run a hose from the bag full of gas and hook it up to that snorkel, and all I had to do was put it in my mouth, close my eyes, and go to sleep. And that would have been it. I would have been gone that Friday."
But on Thursday afternoon, Covillion talked to Hurwitz, who promised to help and asked him to send his medical records by Federal Express. After reviewing the records, Hurwitz saw Covillion at his office in Washington and began treating him. "The last three years I've been all right," he said in a July interview. "I have a life." Yet Covillion was worried that his life would be taken away once again. On May 14 the Virginia Board of Medicine had suspended Hurwitz's license, charging him with excessive prescribing and inadequate supervision of his patients. At the time Hurwitz was treating about 220 people for chronic pain. Some had been injured in accidents, failed surgery, or both; others had degenerative conditions or severe headaches. Most lived outside the Washington area and had come to Hurwitz because, like Covillion, they could not find anyone nearby to help them.
In July, after the case was covered by The Washington Post and CBS News, the Pennsylvania pharmaceutical warehouse that had been supplying Covillion with painkillers stopped filling Hurwitz's prescriptions, even though he was still licensed to practice in D.C. The pharmacist who informed Covillion of this decision (in a telephone conversation that Covillion recorded) suggested that Hurwitz had prescribed "excessively high amounts." At the same time, he recommended that Covillion "find another doctor" to continue the prescriptions. Covillion's reply was angry and anguished: "There is no other doctor!"
Hurwitz may not be the only physician in the country who is willing to prescribe narcotics for chronic pain, but there are few enough that patients travel hundreds of miles to see them. "I call it the Painful Underground Railroad," says Dr. Harvey L. Rose, a Carmichael, California, family practitioner who, like Hurwitz, once battled state regulators who accused him of excessive prescribing. "These are people who are hurting, who have to go out of state in order to find a doctor. We still get calls from all over the country: 'My doctor won't give me any pain medicine.' Or, 'My doctor died, and the new doctor won't touch me.' These people are desperate."
So desperate that, like Covillion, many contemplate or attempt suicide. In an unpublished paper, Rose tells the stories of several such patients. A 28-year-old man who underwent lumbar disk surgery after an accident at work was left with persistent pain in one leg. His doctor refused to prescribe a strong painkiller, giving him an antidepressant instead. After seeking relief from alcohol and street drugs, the man hanged himself in his garage. A 37-year-old woman who suffered from severe migraines and muscle pain unsuccessfully sought Percocet, the only drug that seemed to work, from several physicians. At one point the pain was so bad that she put a gun to her head and pulled the trigger, unaware that her husband had recently removed the bullets. A 78- year-old woman with degenerative cervical disk disease suffered from chronic back pain after undergoing surgery. A series of physicians gave her small amounts of narcotics, but not enough to relieve her pain. She tried to kill herself four times--slashing her wrists, taking overdoses of Valium and heart medication, and getting into a bathtub with an electric mixer--before she became one of Rose's patients and started getting sufficient doses of painkiller.
Patients who cannot manage suicide on their own often turn to others for help. "We frequently see patients referred to our Pain Clinic who have considered suicide as an option, or who request physician-assisted suicide because of uncontrolled pain," writes Dr. Kathleen M. Foley, chief of the pain service at Memorial Sloan-Kettering Cancer Center, in the Journal of Pain and Symptom Management. But as she recently told TheNew York Times Magazine, "those asking for assisted suicide almost always change their mind once we have their pain under control."
One thing that supporters and opponents of assisted suicide seem to agree on is the need for better pain management. Concern about pain was an important motivation for two 1996 decisions by federal appeals courts that overturned laws against assisted suicide in New York and Washington. In the New York case, the U.S. Court of Appeals for the Second Circuit asked, "What business is it of the state to require the continuation of agony when the result is imminent and inevitable?" With the U.S. Supreme Court scheduled to hear a combined appeal of those decisions during its current term, the persistent problem of inadequate pain treatment is sure to be cited once again.
In medical journals and textbooks, the cause of this misery has a name: opiophobia. Doctors are leery of the drugs derived from opium and the synthetics that resemble them, substances like morphine and codeine, hydromorphone (Dilaudid) and meperidine (Demerol). They are leery despite the fact that, compared to other pharmaceuticals, opioids are remarkably safe: The most serious side effect of long-term use is usually constipation, whereas over-the-counter analgesics can cause stomach, kidney, and liver damage. They are leery because opioids have a double identity: They can be used to get relief or to get high, to ease physical pain or to soothe emotional distress.
Doctors are afraid of the drugs themselves, of their potency and addictiveness. And they are afraid of what might happen if they prescribe opioids to the wrong people, for the wrong reasons, or in the wrong quantities. Attracting the attention of state regulators or the Drug Enforcement Administration could mean anything from inconvenience and embarrassment to loss of their licenses and livelihoods. In the legal and cultural climate created by the eight-decade war on drugs, these two fears reinforce each other: Beliefs about the hazards of narcotics justify efforts to prevent diversion of opioids, while those efforts help sustain the beliefs. The result is untold suffering. Dr. Sidney Schnoll, a pain and addiction specialist who chairs the Division of Substance Abuse Medicine at the Medical College of Virginia, observes: "We will go to great lengths to stop addiction--which, though certainly a problem, is dwarfed by the number of people who do not get adequate pain relief. So we will cause countless people to suffer in an effort to stop a few cases of addiction. I find that appalling."
Because pain is hard to verify objectively, the conflict between drug control and pain relief is inevitable. It can be alleviated through regulatory reform, but it can never be eliminated. A system that completely prevented nonmedical use of prescription drugs would also leave millions of patients in agony. Conversely, a system that enabled every patient with treatable pain to get relief would also allow some fakers to obtain narcotics for their own use or for sale to others. In deciding how to resolve this dilemma, it's important to keep in mind that people who use prescription drugs to get high do so voluntarily, while patients who suffer because of inadequate pain treatment have no choice in the matter.
A woman who recently served as a chaplain at a New York City hospital encountered many patients in severe pain. "You let them squeeze your hand as hard as they want to, and cry, scream, express their frustration," she says. "It's horrible being in pain. It's really debilitating. It kills the spirit." She found that nurses were reluctant to give patients more medication. "If a patient seemed to really be in agony, I would go to a nurse," she says. "They were concerned about giving them too much." She recalls one patient who was in "terrible pain" following surgery. "They only had him on Tylenol," she says. "He complained about it, but then he said, 'Well I suppose they know best. They don't want me to get addicted to anything.'"
Clinicians and researchers have long remarked on the link between opiophobia and undertreatment of pain. In a 1966 pharmacology textbook, the psychiatrist Jerome H. Jaffe, who later became Richard Nixon's drug czar, noted that patients who take narcotics long enough develop tolerance (a need for larger doses to achieve the same effect) and physical dependence (resulting in withdrawal symptoms). But he cautioned that "such considerations should not in any way prevent the physician from fulfilling his primary obligation to ease the patient's discomfort. The physician should not wait until the pain becomes agonizing; no patient should ever wish for death because of his physician's reluctance to use adequate amounts of potent narcotics."
Jaffe's admonition suggests that undertreatment of pain was common, an impression confirmed in the early 1970s by two psychiatrists at Montefiore Hospital and Medical Center in New York. Assigned to handle "difficult" patients, Richard M. Marks and Edward J. Sachar discovered a very good reason why so many continued to complain even after being treated with narcotics: They were still in pain. "To our surprise," they wrote in the February 1973 Annals of Internal Medicine, "instead of the primary issue being personality problems in the patient, in virtually every case it was found that the patient was not being adequately treated with analgesics and, further, the house staff for various reasons was hesitant to prescribe more."
Marks and Sachar's surveys of patients and doctors found "a general pattern of undertreatment of pain with narcotic analgesics, leading to widespread and significant distress." In part they blamed "excessive and unrealistic concern about the danger of addiction," which doctors erroneously equated with tolerance and physical dependence. Marks and Sachar emphasized the distinction between a patient who seeks a drug for pain relief and an addict who seeks a drug for its euphoric effects: The patient can readily give up the drug once the pain is gone, whereas the addict depends on it to deal with daily life. (The definition of addiction is fraught with social and political implications, but this distinction suffices for the purposes of this article.) Marks and Sachar estimated that less than 1 percent of patients treated with narcotics in a hospital become addicts. Although they urged better training in pain treatment, they concluded with a prescient warning: "For many physicians these drugs may have a special emotional significance that interferes with their rational use."
Subsequent studies confirmed that patients treated with narcotics rarely become addicts. In 1980 researchers at Boston University Medical Center reported that they had reviewed the records of 11,882 hospital patients treated with narcotics and found "only four cases of reasonably well documented addiction in patients who had no history of addiction." A 1982 study of 10,000 burn victims who had received narcotic injections, most of them for weeks or months, found no cases of drug abuse that could be attributed to pain treatment. In a 1986 study of 38 chronic pain patients who were treated with opioids for years, only two became addicted, and both had histories of drug abuse.
Despite such reassuring findings, many patients continued to suffer because of their doctors' opiophobia. In December 1987 TheNew York Times ran a story with the headline, "Physicians Said to Persist in Undertreating Pain and Ignoring the Evidence." Russell Portenoy, director of analgesic studies at Memorial Sloan-Kettering Cancer Center, told the Times, "The undertreatment of pain in hospitals is absolutely medieval....The problem persists because physicians share the widespread social attitudes that these drugs are unacceptable." He added that "many physicians fear sanctions against themselves if they prescribe the drugs more liberally." The article cited a recent survey in which 203 out of 353 patients at a Chicago hospital said they had experienced "unbearable" pain during their stay. More than half were in pain at the time of the survey, and 8 percent called the pain "excruciating" or "horrible." Most of the patients said nurses had not even asked them about their pain. The same study found that nurses were dispensing, on average, just one-fourth the amount of painkiller authorized by physicians.
The ordeal of Henry James, which began and ended the same year the New York Times article appeared, illustrates this stingier-than-thou tendency. James, a 74-year-old with prostate cancer that had spread to his leg and spine, was admitted to Guardian Care of Ahoskie, a North Carolina nursing home, in February 1987. Like many patients in the late stages of cancer, James was in severe pain, and his doctor had prescribed 150 milligrams of morphine every three or four hours, "as needed." The nursing staff thought that was far too much. They started cutting back his doses, substituting headache medicine and placebos. He received 240 doses in January but only 41 in February. The nursing supervisor, Rebecca Carter, told James and his family that she didn't want him to become an addict. She also said that if he took too much pain medication early on, it wouldn't work anymore when he really needed it.
James died after four months of agony. His family sued Guardian Care, and at the trial pain experts testified that the amount of medication Carter and her staff dispensed was grossly inadequate. They also noted that narcotic doses can be increased indefinitely to compensate for tolerance, so Carter's concern that the medicine would stop working was "ridiculous." In November 1990 the jury ordered the nursing home to pay James's estate $15 million, including $7.5 million in punitive damages. After the verdict, an unrepentant Carter told the Los Angeles Times "nothing whatsoever has changed....We still give drugs the way we always have."
Outside of Guardian Care, however, things were starting to change by the mid-'80s. As critics drew attention to the torture inflicted by undertreatment, the use of painkillers began rising substantially. Between 1979 and 1985, for example, consumption of oxycodone and hydromorphone rose 40 percent and 67 percent, respectively, according to DEA figures. The National Institute on Drug Abuse acknowledged the problem of opiophobia. In 1989 NIDA Director Charles Schuster confessed, "We have been so effective in warning the medical establishment and the public in general about the inappropriate use of opiates that we have endowed these drugs with a mysterious power to enslave that is overrated." A 1993 article in NIDA's newsletter said "these drugs are rarely abused when used for medical purposes" and lamented that "thousands of patients suffer needlessly." In 1992 and 1994 the U.S. Department of Health and Human Services issued guidelines urging more aggressive treatment of postoperative pain and cancer pain, respectively. The 1994 guidelines said 90 percent of cancer pain could be controlled with available methods. On the same day that HHS released the guidelines, The New England Journal of Medicine published a national study estimating that 42 percent of cancer outpatients do not receive adequate pain treatment.
It is startling to realize, as the end of the 20th century approaches, that the idea of giving patients enough medication to relieve their pain is just catching on. One reason for the slow progress is that advocates of better pain treatment have been fighting deeply rooted prejudices. Americans have always had mixed feelings about psychoactive substances. To deal with our ambivalence, we tend to divide drugs into neat categories: good and bad, legal and illegal, therapeutic and recreational. We are not comfortable with drugs that straddle categories, as the opioids do. The discomfort is strengthened by historical experience, ranging from Civil War veterans hooked on morphine to middle-class housewives hooked on over-the-counter remedies in the years before the Harrison Narcotics Act of 1914. The nexus between medical treatment and opiate addiction was vividly portrayed in Eugene O'Neill's Long Day's Journey into Night, written in 1940 and set in 1912. Mary Tyrone, the wife of a stage actor, is a shaky, nervous woman who uses morphine to escape her troubles. She became addicted as a result of injections she received following the birth of her son. "I was so sick afterwards," she says, "and that ignorant quack of a cheap hotel doctor--all he knew was I was in pain. It was easy for him to stop the pain."
Patients still worry about getting hooked on painkillers. Schnoll, the Virginia pain and addiction specialist, cites the impact of anti-drug propaganda "telling us that there's an addict on every corner, under every stone. So of course people are fearful. I find that my own patients are often unwilling. I have to convince them to take the medications I'm prescribing them." Foley, the Sloan-Kettering pain specialist, says the problem is especially vexing in the case of children. "Parents are so afraid of addicting their kids that they do not want to treat them," she says. "They say, 'The pain's not so bad,' or, 'We don't want him to be sleepy,' or, 'We don't want to make him an addict.' They say to the kid, 'Be tough.' But they're very torn and confused. They're afraid of the drugs, because every parent has heard Nancy Reagan say, 'Say no to drugs.' So they're saying, 'My God! Drug addiction could be worse than my child's cancer.' "
By perpetuating such attitudes, the war on drugs obstructs pain relief. Through efforts to prevent narcotics from falling into the wrong hands, it has a more direct effect. A 1987 DEA report cites declines of 30 percent to 55 percent in the use of Schedule II drugs within two years after the adoption of multiple-copy prescription programs in various states during the 1960s and '70s. "I think it's a testament to the percentage of misprescribing and criminal prescribing that goes on," says Gene Haislip, the DEA's director of diversion control. "I don't think there's any evidence that they're discouraging appropriate medical use. We think there's some evidence to suggest they're discouraging inappropriate prescribing, but I don't have any reason to think they really have an impact on legitimate practitioners." Haislip likens compliance with a multiple-copy prescription program to filing an income tax return. "We don't decide not to make money because we have to report it," he says. "And I don't think doctors are deciding, 'Well, this patient isn't going to get medical treatment that's appropriate because somewhere somebody may read something and ask me some questions.'"
The tax code, of course, has a big impact on the way people make (or don't make) money. And despite Haislip's reassurances, there is substantial evidence that prescription monitoring has a chilling effect on the practice of medicine. To begin with, a large percentage of doctors in multiple- copy states--in California, almost half--do not even request the special forms, which suggests that "legitimate practitioners" are deterred by the hassle and scrutiny involved. "When I was in Illinois," says Sidney Schnoll, "there were physicians who just didn't want to carry triplicate forms. Sometimes they would call me up and say, 'You have triplicates, don't you? Can you write a prescription for so-and-so?' That's not good medicine."
Furthermore, it hardly seems plausible that frivolous or fraudulent prescriptions could account for a third to a half of a state's licit narcotic use, as Haislip suggests. The limited research on this question does not support that view. A 1984 study reported in the American Journal of Hospital Pharmacy found that Schedule II prescriptions at a major Texas hospital dropped more than 60 percent the year after the state began requiring triplicate forms for such drugs. At the same time, prescriptions of analgesics not covered by the program rose. A 1991 study reported in The Journal of the American Medical Association found a similar pattern in New York state, which added benzodiazepines, a class of sedatives that includes Valium, to the drugs covered by its monitoring program in 1989. Prescriptions for benzodiazepines dropped substantially in New York, while use of several other sedatives rose, even as consumption of those drugs fell in the rest of the country. The researchers noted that "[t]he alternative sedative-hypnotic medications are less effective, more likely to be abused, and more dangerous in overdose than benzodiazepines." These studies suggest that multiple-copy prescription programs lead physicians to replace monitored drugs with less appropriate alternatives.
This sort of behavior is reinforced every time a conscientious doctor gets hassled by the authorities because someone thought his prescriptions looked suspicious. In 1987 two state drug agents visited the office of Ronald Blum, associate director of New York University's Kaplan Comprehensive Cancer Center. "They showed me their badges and guns, and read me my rights," he told the Journal of NIH Research. It turned out that Blum had filled out some narcotic prescription forms incorrectly. The New York State Department of Health charged him with three administrative violations, including failure to report his cancer patients to the state as habitual drug users. A year and a half later, after Blum had spent $10,000 in legal fees, the state finally dropped the charges. In 1987 the DEA investigated Portland, Oregon, oncologist Albert Brady because he was prescribing high doses of Dilaudid to a cancer patient in a nursing home. Although the DEA concluded that Brady was not supplying drugs to the black market, it notified the state Board of Medical Examiners, which fined him $5,000 for overprescribing and suspended his license for a month. It does not take many incidents like these to "have an impact on legitimate practitioners." Brady told the Journal of NIH Research that his two partners "changed their practice overnight and became reluctant to prescribe sufficient doses of painkillers."
As the Brady case illustrates, even in states that do not require special forms for certain drugs, physicians have to worry about attracting the attention of state licensing boards. A 1991 survey of 90 physicians reported in the Wisconsin Medical Journal found that most were concerned enough about regulatory scrutiny to prescribe lower doses, indicate smaller amounts, allow fewer refills, or select a different drug than they otherwise would have. Given the attitudes of many regulators, such caution is understandable. In 1992 the University of Wisconsin Pain Research Group surveyed state medical board members throughout the country. The results, as reported in the newsletter of the American Pain Society, were striking: "Only 75% of medical board members were confident that prescribing opioids for chronic cancer pain was both legal and acceptable medical practice....If the patient's chronic pain did not involve a malignancy, only 12% were confident that the practice was both legal and medically acceptable." Since these are the people who define the limits of appropriate medicine, their beliefs are bound to affect the treatment of pain.
Dr. C. Stratton Hill, a professor of medicine at the M.D. Anderson Cancer Center in Houston, became interested in the impact of regulatory expectations on medical practice about a decade and a half ago. "Patients with obvious cancer pain were given doses that were not adequate," he says. "So I began looking at why physicians were reluctant to prescribe opioids in appropriate amounts, and I realized that the bottom line was that they were afraid of sanctions by regulatory agencies."
Hill and other physicians lobbied for what came to be known as the Intractable Pain Treatment Act, which the Texas legislature approved in 1989. Essentially, the law said doctors would not be punished for prescribing narcotics to patients suffering from pain that could not be relieved through other means. But this assurance "did not make any difference in what the doctor did," Hill says, "because there was no commonly understood standard of practice. The doctor could still be charged and have to defend himself, and that cost money. Maybe the doctor would win, but that would be $25,000 later."
In 1995 Hill and his colleagues convinced the state Board of Medical Examiners to adopt rules clarifying the vague provisions of the state Medical Practice Act under which doctors were most commonly charged. Under the new rules, a doctor who prescribes a drug in good faith for a legitimate medical purpose (including pain relief) is not subject to sanctions, provided he observes certain safeguards and keeps careful records. Hill thinks the new policy may be having an impact. The year after the rules were issued, 17 doctors were charged under the relevant sections, compared to 37 the year before.
Hill's work in Texas helped inspire similar efforts in California, where Harvey Rose emerged from his battle with regulators--which took $140,000 in legal fees and five years to resolve--determined to help other doctors avoid similar conflicts. In 1990 the state legislature adopted an Intractable Pain Treatment Act modeled after the Texas statute, and in 1994 the Medical Board of California issued guidelines intended to reassure wary doctors. Although California's current approach is decidedly more enlightened than the policies of other states, Rose says "doctors are still fearful. They just don't want to deal with patients like this, because they're afraid it's too difficult. They're never sure if they're getting enough records and covering their butts enough. It's much easier just to say, 'No, I'm sorry. I don't take care of your kind.'"
That was essentially the response encountered by Cynthia A. Snyder, a nurse who recently described her own search for pain relief in The Journal of Law, Medicine, and Ethics. After a cerebral aneurysm and brain surgery in 1983, Snyder suffered from seizures, memory loss, and "terrible, unrelenting pain." But she soon learned that "I lacked the 'proper diagnosis' to control my pain. I did not have terminal cancer." Like many other patients in the same situation, Snyder found that her desperation for relief was viewed with suspicion. "Several times," she writes, "I was openly accused of being an 'addict' and of falsely reporting chronic pain just to obtain prescription drugs....Finally, I found myself begging, as though I were a criminal." After five years of suffering, she found a physician willing to prescribe regular doses of codeine. "Within two weeks, I felt reborn!" she recalls. "I began writing again. My doctorate was completed, and once more I began to teach part-time. My hope was restored, and my life was no longer crippled by constant severe pain."
Eventually, Snyder reports, "the precise neuropathology of the pain was discovered." But that was years after her brain surgery. When she was searching for a doctor to help her, she could not offer any definitive evidence of her pain. There were records of the aneurysm and the operation, but only her complaint testified to her ongoing suffering. This is often the case with intractable pain. How do you prove the existence of migraine headaches or back pain, not to mention poorly understood conditions such as fibromyalgia and chronic fatigue syndrome? A doctor can take a patient's history, inquire about symptoms, and perform an exam. He can consider the patient's character and reputation. But in the end, he is only surmising that the pain is real. Ultimately, he has to take the patient at his word, knowing that misplaced trust could mean professional ruin.
Ask William Hurwitz. The doctor who offered David Covillion an alternative to a Kevorkian- style death lost his license in August, as did Jerome A. Danoff, the pharmacist who filled prescriptions for many of Hurwitz's patients. The investigation began in May 1995, when agents of the DEA and the Virginia Department of Health Professions visited Danoff's store because a wholesaler had reported unusually large orders of narcotics. Hurwitz asked his patients to sign waivers of confidentiality and opened up his records to the investigators. A year later, when relatives of two patients who had died in January 1996 complained to the Virginia Board of Medicine, the board suspended Hurwitz's license, charging him with misprescribing not only for those patients but for 28 others.
It's doubtful that the deaths resulted from Hurwitz's negligence. One patient, a Tennessee man with a head injury that impaired his sense of smell, died after eating rotten chicken fajitas and vomiting all weekend. Hurwitz believes he died of intestinal hemorrhaging caused by food poisoning, but the medical examiner, after finding a lot of empty Dilaudid bottles, concluded that the man had died of an overdose, a theory that was not supported by a blood test. On the other hand, needle tracks indicated that the man had been dissolving his painkiller and injecting it, contrary to Hurwitz's instructions, and his girlfriend said he had been taking excessive doses of a muscle relaxant. In the other case, which involved a Florida woman suffering from facial pain after failed jaw surgery, toxicology tests showed that she had taken oxycodone and morphine in much higher doses than Hurwitz had prescribed. He believes her death was a suicide, and the patient's mother, who defends him, concurs. Her ex-husband thinks his daughter died of an accidental overdose and blames Hurwitz.
The investigators found one former patient who complained that Hurwitz had given him too many pills and too little information about their side effects. But none of his current patients had anything bad to say about him. Many traveled long distances to show their support at his hearing before the Board of Medicine, and more than 50 testified on his behalf. Hurwitz's motives were not in doubt, and the hearing focused largely on the amounts of medication he had prescribed. His patients were taking anywhere from 10 to 200 pills a day.
Hurwitz explained that some patients are especially resistant to narcotics to begin with, and all develop tolerance. He insisted that the number of pills is not the issue, since a patient who would otherwise be incapacitated by pain can function well on doses of narcotics that would kill the average person. In fact, Virginia has an Intractable Pain Treatment Act that allows doctors to prescribe narcotics "in excess of the recommended dosage upon certifying the medical necessity." Dr. Mitchell Max, director of the Pain Research Clinic at the National Institutes of Health, testified: "I see nothing wrong with the doses, the amount, the number of pills per se....He is just taking regimens that work in cancer patients that everyone agrees on, and using them in people who had life-impairing, or even life-threatening, levels of pain....We routinely give doses up to 10 times that size in patients with cancer."
The state questioned the thoroughness of Hurwitz's examinations, documentation, and monitoring. Hurwitz says most of his pain patients came to him with well-established problems, and "my main purpose in doing the diagnosis was to make sure that the patients were who they said they were. If they said they had back surgery, I wanted to see a back scar. If they said they had no leg, I wanted to look at the stump. So my physical exam was really limited to confirmatory findings that would illustrate the complaints and make sure they weren't conning me." As for monitoring, he saw patients who lived in the area once a month, but those who lived hundreds of miles away might visit his office only once or twice a year. The visits were supplemented by a monthly written report and telephone calls.
"The average practitioner does have reservations about prescribing long-term opiates," testified Dr. Stephen P. Long, director of acute pain services at the Medical College of Virginia Hospitals. "I would have performed a more thorough physical exam. I would like to have seen more detailed documentation." On the other hand, Dr. James Campbell, director of the Blaustein Pain Treatment Center at Johns Hopkins University, said Hurwitz "is doing heroic things for his patients. I think what he is doing involves enormous sacrifice. There are a lot of bad doctors out there, but he is not one of them."
On August 10, after the longest hearing in its history, the Virginia Board of Medicine found Hurwitz guilty of inadequate screening, excessive prescribing, and deficient monitoring. It revoked his license, saying it would be restored after three months if he agreed to take courses in narcotic prescription, pharmacology, psychiatry, addiction, medical record keeping, and pain management. Even then, he would be forbidden to prescribe narcotics for a year. Hurwitz has registered for the courses, but he has also filed an appeal in Arlington Circuit Court. After the Virginia ruling, the D.C. Board of Medicine suspended Hurwitz's license. Unable to practice, he had to give up his office. About the same time, the Virginia Board of Pharmacy revoked Jerome Danoff's license for two years and fined him $10,000. He also planned to appeal.
Meanwhile, Hurwitz's patients were left high and dry. "I'm flabbergasted," he told The Washington Post after his Virginia license was revoked. "The Board of Medicine has told my patients, 'Drop dead.'" Said Laura D. Cooper, a patient with multiple sclerosis: "The board has made no provision for the patients. If I can't get medicine, I'm going to die the next time I get sick, and that's not histrionics. Some of us are candidates for suicide right now." Cooper, an attorney, has filed a federal class-action suit against the Virginia Board of Medicine, the Department of Health Professions, and the DEA on behalf of herself and Hurwitz's other pain patients.
David Covillion is not
a party to the suit. He killed himself on September 11.
Jacob Sullum is a senior editor of REASON.