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Back to Square One
Federal Appeals Court Orders New Trial for McLean Pain Doctor
 

 
Ken Moore;  The Connection Newspapers; 2006-08-31. Posted: 2006-08-31.
[Identifier: http://www.doctordeluca.com/Library/WOD/WPS4-Hurwitz/Hurwitz-Back2Sq1NewTrial06.htm]
[Source: http://www.connectionnewspapers.com/article.asp?article=70543&paper=0&cat=109]
 
Related resources:
War on Docs Academic, Legal, Official archives  ;  War on Docs Journalism and Advocacy archives  ; 
 
Major Media on War on Doctors - WAR ON PAIN SUFFERERS #12

See also (from The Dr. William Hurwitz collection):
 
Hurwitz Takes the Stand, Jury Begins Deliberations - Ken Moore; The Connection News.; 2004-12-09
 
US v Hurwitz Appeal Decision (PDF) - Widener, Traxler, and Currie; 4th Circuit Court of Appeals; 2006 -08-22
 Unbalanced Coverage of [Hurwitz'] Successful Appeal - Maia Szalavitz, STATS, 2006-08-23
The Doctor is Not a Criminal - Jacob Sullum; National Review; 2005-05-23

War on Doctors/Pain Crisis blog and RSS feed
 

[Skip to Sidebar: Excerpt from U.S. Court of Appeals 4th Circuit's ruling on the appeal of Dr. Hurwitz...]

Dr. William E. Hurwitz waited for the jury's verdict following 21 days of testimony including 63 witnesses and exhibits from 31 notebooks containing thousands of pages of documents used by the U.S. government against him. "I felt I was doing the best I could as a doctor to relieve pain," Hurwitz said in Dec. 2004, inside the U.S. District Courthouse in Alexandria as the jury deliberated over his fate. "I know, in my mind, I did everything in good faith to help people," Hurwitz said, a day after closing arguments in a six-week trial that drew national attention. "Good faith was at the heart of Hurwitz's defense," stated a three-judge panel from the U.S. Court of Appeals for the Fourth Circuit in a ruling issued last Tuesday, Aug. 22, 2006. But U.S. District Judge Leonard D. Wexler didn't permit the Alexandria jury, which deliberated for 30 hours in December 2004 before convicting the McLean pain doctor of 50 of the 62 counts against him, to consider "good faith" when deciding on charges of conspiracy to traffic in controlled substances, drug trafficking resulting in death and serious bodily injury, and drug trafficking distributions. "By concluding that good faith was not applicable to the charges and affirmatively instructing the jury that good faith was not relevant to those charges, the district court deprived the jury of the opportunity to consider Hurwitz's defense," ruled the U.S. Circuit Court of Appeals for the Fourth Circuit. "Thus, while we recognize that the government's evidence was strong, we simply cannot conclude that the district court's error in removing good faith from the jury's consideration was harmless." The three judges who ruled on Hurwitz's appeal reversed the convictions against him last Tuesday, Aug. 22, and remanded his case back to Alexandria for trial. "He's basically very buoyed by this success," said Hurwitz's brother, Kenneth Hurwitz, an attorney with Human Rights First. "It's a terrific victory. It's a big step for the country, but a smaller step for my brother. Now, we're at square one."

THE PROSECUTION can appeal the decision to overturn the conviction, or move forward to bring the McLean pain doctor to trial again. "If we elect not to appeal the decision of the appellate court — and we are still reviewing that option — we intend to retry Dr. Hurwitz," said a spokesman for United States Attorney Chuck Rosenberg. Since his sentencing hearing in April 2005 when Judge Wexler sentenced Hurwitz to 25 years in prison, Hurwitz has spent just shy of 500 days in federal prison in Cumberland, Md. It will be critical to move Hurwitz closer to home to prepare for his new trial, his brother said. "He can't prepare for trial from a Maryland federal prison. We hope to get him closer to home," Kenneth Hurwitz said. "After spending hundreds of thousands of dollars and most of my family's savings, now we're forced to prepare for trial again," he said.

HURWITZ CAME to the attention of federal authorities in 2002, after several of his patients were arrested for selling prescription drugs and identified Hurwitz as the source of the drugs, according to the appellate court's summary of the case. Prosecutors didn't discount the care some of Hurwitz's patients received. But the 1,879,677 pills Hurwitz prescribed for just 24 of the 400-plus patients he treated from 1998-2002 led to drug addiction, drug dependency and death, according to Assistant U.S. Attorneys Eugene Rossi and Mark Lytle, who prosecuted the case. The prosecution never claimed that Hurwitz directly profited from illicit drug sales. One of the fallacies of the case against Hurwitz, according to his trial defense attorneys, was that the jury only saw a small fraction of his practice, not the hundreds of patients who found relief from his care. Hurwitz's attorneys described treatment of chronic debilitating pain as an evolving science, and presented evidence that high-dose opioid treatment is a proper medical procedure for treating patients with intractable pain. "One expert testified that once a patient becomes tolerant of the side effects, there is effectively ‘no ceiling' on the quantity of opioids that can be prescribed if necessary to control pain," according to the federal appeals court summary of the case. "[The government] prevented my brother from being able to show how complicated these decisions about pain management are," Kenneth Hurwitz said. The jury was allowed to consider good faith in the charges of health care fraud, and acquitted Hurwitz on those two counts. Advocates for patients with chronic pain turned out for Hurwitz's trial, and spoke out against the prosecution of doctors who aggressively treat pain for patients who cannot get relief in any other way. While in federal prison, Hurwitz has been learning Italian from a Sicilian prisoner and playing bass guitar in a band. He teaches GED classes to other prisoners and helps other inmates write letters to loved ones, said Kenneth Hurwitz. "He can uniquely make the best of any situation. He's a strong person, and he sees the best in everybody."

Excerpt from the 4th Circuit's Decision in US v Hurwitz

Overturned
"Good faith was at the heart of Hurwitz's defense."
- U.S. Court of Appeals for the Fourth Circuit

"While the government's evidence was powerful and strongly indicative of a doctor acting outside the bounds of accepted medical practice, we cannot say that no reasonable juror could have concluded that Hurwitz's conduct fell within an objectively-defined good-faith standard. Hurwitz presented expert testimony showing that it was proper to use opioids when treating addicts who suffered from pain.

Hurwitz's experts testified that his high-dose opioid therapy was a medically appropriate way to treat intractable pain and that the quantities of opioids he prescribed were appropriate. Even as to the patients whose dosages appeared extraordinarily high, such as the patient who was prescribed over 500,000 pills during the course of his treatment, the record contains expert testimony showing that Hurwitz's treatment and the quantities of opioids prescribed was medically proper. In addition, the testimony of Hurwitz and his staff indicated that he ran a legitimate medical practice, requiring patients to submit medical records and questionnaires before visits, conferring with other physicians outside of his practice about proper procedures, and relying on information from professional conferences when determining proper treatment practices. Thus, the record reveals a sufficient evidentiary basis for a good-faith instruction.

"Good faith was at the heart of Hurwitz's defense. Hurwitz did not dispute the bulk of the government's factual evidence - that is, he did not argue that he did not prescribe the narcotics that were the basis for the charges against him. Instead, Hurwitz agued that the manner in which he used narcotics to treat chronic and debilitating pain was a medically proper approach to a difficult medical issue. By concluding that good faith was not applicable to the... charges and affirmatively instructing the jury that good faith was not relevant to those charges, the district effectively deprived the jury of the opportunity to consider Hurwitz's defense. Thus, while we recognize that the government's evidence was strong, we simply cannot conclude that the district court's error in removing good faith from the jury's consideration was harmless."

[Full Text:  US v Hurwitz Appeal Decision (PDF) - Widener, Traxler, and Currie; 4th Circuit Court of Appeals; 2006 -08-22]  

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