[PDF print version]
[The following is a response
by Dr Joel Hochman to the article
printed in the Washington Post, entitled "2
N.Va. Doctors Linked to Deluge Of Illegal Drugs; Patients Resold Painkillers;
Half-Dozen Deaths Probed" published on December 23 and written by Josh
White. Originally posted: January 26, 2003.]
Dear Editors, Dear Mr. White:
Your paper has published several articles about the DEA's investigation of
Washington area pain practitioner Dr. William Hurwitz, including a report that
Dr. Hurwitz would close his practice rather than subject his patients to
further harassment and the risk of abandonment were he arrested. On December
23rd you published another article, reporting that two Virginia doctors (were)
Linked to a Deluge of OxyContin deaths. I am writing to rebut your
article on several very serious grounds.
To begin, your conclusions in this article are founded upon very dubious
premises and flawed facts, and pander to sensationalism. May I refer you to
the May 2nd, 2002 article in the Cleveland Free Times, entitled, "OxyCon
Job - The Media Made OxyContin Drug Scare."
The claim that 146 deaths are directly attributable to the drug and that 464
deaths are "related" to the drug are spurious . Furthermore, expert
testimony refutes these sensationalistic claims. Dr. June Dahl, professor of
pharmacology at the University of Wisconsin Medical School and president of
the American Alliance of Cancer Pain Initiatives (AACP), points out that
"cocaine accounts for half of all drug-related emergency room visits, at
a cost of more than $30 billion annually." When placed in that
context, claims of a national OxyContin epidemic "seem incredibly
And there is another reason why the increase is not as significant as it might
first appear. The increase in ER visits was largely predictable since
legitimate use of OxyContin rose by a similar amount, argues Dr. Fisher of the
American Pain Foundation. He points to Vicodin as a much more serious
prescription drug problem, since illegal usage of it as a percentage of its
total sales is rising much faster than that of oxycodone. "That's the
real problem," he claims." Compared to it, OxyContin only accounts
for 10 percent of the cases but gets 90 percent of the attention."
So the demonic picture you presume of the "epidemic of OxyContin abuse
and the terrorization of pharmacies" lacks a defensible foundation in fact.
Further, to the extent it has any factual basis, it appears to be
significantly generated by media sensationalism and popularization.
The near hysterical claims that Drs. Hurwitz and Statkus have been the source
of this fictional calamity and multiple deaths is plainly propaganda provided
to you by prosecutors seeking to make their case in public before they enter
the court room. It is standard prosecutory fare, and was employed precisely in
this way in the fruitless persecutions of Doctors Robert Weitzel and Frank
Fisher. Your sources are biased and you appear to be simply providing a
conduit for misinformation.
As for the plea bargain inspired claims by 16 patients that the doctors were
responsible for their behavior, this is simply a prosecutorial deal. Wanting
to fabricate a high profile case against doctors, they have offered a deal to
those who will "roll over" on their physicians. This is standard operating procedure for drug prosecution. Get a small fish
and offer to let him go if he will implicate a big fish, is the name of the
game. These patients are, in the vernacular, "snitches."
Having apparently abused their medications and now the trust of the physicians
who were attempting to legitimately treat them, they are offered as proof
against the doctors. It is a slimy business, but typical of the modus operandi
of "drug warriors."
In contrast to this propaganda, I offer the following factual information,
based upon specific case experiences. My practice consists of treating patients with chronic, intractable pain. I am
also the Executive Director of the National Foundation for the Treatment of
Pain (http://www.paincare.org/) A
number of Dr. Hurwitz's former patients have come to me. I have established
1. All were legitimately and correctly diagnosed.
2. All believed that their treatment regimen was effective and were thoroughly
satisfied with Doctor Hurwitz's care.
3. All described marked improvement in functionality under his care.
None presented any credible reason to doubt their reliability and legitimacy.
4. All were accompanied by more than competent and adequate medical records
that clearly established conditions which medically justified chronic and
long-term opioid therapy.
5. Their clinical notes are extensive and highly organized.
6. The records show that Doctor Hurwitz adjusted medications to effective
7. Upon reaching effective treatment, doses were stable and did not
8. Tolerance did not develop and no adverse medical or behavioral changes
occurred. With one possible exception in the cases I have seen, no addictive
behaviors or symptoms occurred.
9. None of the patients I have seen appeared likely to engage in, nor was
there any history or evidence of, diversion.
10. In several cases a difference in treatment philosophy occurred, regarding
some dosages and schedules, and occasionally as to the choice of long or short
acting opioids. My impression was that in these cases Doctor Hurwitz elected
to utilize a very aggressive treatment regimen, under very acute
circumstances. When I entered the clinical picture the cases had become stable and chronic, permitting much more conservative
11. In all these cases I have continued the long term opioid therapies.
Medications have been revised in some cases, and adjustments in doses and
schedules have been made. Several patients were transitioned to different,
sustained release medications. The changes reflected legitimate and acceptable
differences in professional practices, preferences and circumstances.
12. With one exception, all the patients have continued to do well and
13. Specifically, the patients have done nothing to suggest criminal intent or
14. Their physical and social functioning has unarguably improved, through the
provision of critical, effective pain relief.
The ethics of medicine require compassionate care. Chronic pain is a scourge
in this country that disables millions and blights the lives of patients and
their families. Medical standards and regulatory guidelines support and
encourage effective pain management. Despite this, most doctors are afraid to
treat pain aggressively. The chilling effect of the Hurwitz investigation will
only step up this trend. Sadly, it also stigmatizes pain patients, and
particularly those who have been attended by Dr. Hurwitz. No doctor can
consider helping them without wondering if investigations, notoriety and
financial catastrophe will come with them. The situation is horrific for
Secondly, judging the legitimacy, appropriateness and effectiveness of medical
care is not the business of prosecutors, Grand Juries or law enforcement.
Professional mechanisms for such review are universally available. Why are
they being circumvented?
In that regard, I have copied, below, the resolution of the Utah Medical
THE CRIMINALIZATION OF MEDICAL PRACTICE
a resolution of the Utah Medical Association
The Utah Medical Association opposes the criminalization of medical care and
sees unfounded accusations of physicians in criminal court and the criminal
trial of physicians' professional judgment and quality of practice as a
serious threat to patient care in the State of Utah and an unreasonable burden
on the medical profession. Although it is acknowledged that the public must be
defended against criminal actions, we do not believe that the professional
assessment of medical competence necessary to discriminate between medical
incompetence and criminal negligence can be judged fairly and knowledgeably
before a lay jury in criminal court in the manner contemplated in State v.
Warden. Instead, we strongly affirm the following statement of the Kansas
Court of Appeals in the public policy defining decision of State v. Narramore:
"When there is such strong evidence supporting a reasonable, non criminal
explanation for the doctor's actions, it cannot be said that there is no
reasonable doubt of criminal guilt. This is particularly true in a situation
as we are faced with here, where the only way the defendant's actions may be
found to be criminal is through expert testimony, and that testimony is
strongly controverted in every detail. ... [If] criminal responsibility can be
assessed based solely on the opinions of a portion of the medical community
which are strongly challenged by an opposing and authoritative medical
consensus, we have criminalized malpractice, and even the possibility of
Lastly, we believe that when a medical expert admonishes a prosecutor against
filing a criminal complaint, it behooves the prosecutor to reconsider his
position and seek the opinion of the Utah Medical Association, the Physicians
Licensing Board, or some other regularly established and constituted panel of
medical peers. Neither Utah's physicians nor their patients can afford this
type of judicial embarrassment. It is a serious threat to good patient care
for all Utah's citizens.
This resolution was triggered by the Doctor Robert Weitzel case, in which he
was charged with five counts of murder. Evocative of the historic Dreyfuss
affair, after four horrific years Doctor Weitzel was completely exonerated.
Review of the facts makes it clear that this was a bizarre effort by a local
district attorney to "put a doctor away." The same is true of the
Doctor Frank Fisher case in California. Now the DEA is planting news releases
in Virginia calling for murder prosecutions against Drs. Hurwitz and Statkus.
The decision about what constitutes appropriate medical care can only be made
by physicians. It is outside the credible domain of prosecutors and Grand
Juries. Each time it has been taken to a real jury of peers, they have
affirmed this principle. Medicine cannot be practiced by regulators,
undercover agents, snitches, cooperating witness-defendants in criminal cases,
prosecutors, districts attorney, attorneys general or even syndicated news
Doctor William Hurwitz saved hundreds of lives when other physicians,
frightened and/or opiophobic, turned their backs to them. The suggestion that
he should now be made a poster boy for the DEA's latest campaign to
"prevent drug diversion," itself a trivial issue in the large
picture of drug abuse, is bestial and vile. If being duped by a drug abusing
patient is grounds for murder charges, there is virtually no doctor in America
who is not vulnerable.
Pain patients and their treatment must be left to the physicians who must
treat them. Drug warriors need to go after the real masters behind the illicit
drug empires and their confederates. Smoke and mirror murder prosecutions of
legitimate physicians are no longer effective distractions from the real
issues. We all know about the highest level corruption behind drug
trafficking. Are those cases perhaps a little more politically risky than
prosecuting a few solo practitioners?