ALEXANDRIA, Va., March 26 - The case of the
United States v. William Eliot Hurwitz, which began in federal court here on
Monday, is about much more than one physician. It's a battle over who sets the
rules for treating patients who are in pain: narcotics agents and prosecutors,
or doctors and scientists.
Dr. Hurwitz, depending on which side you listen to, is either the most infamous
doctor-turned-drug-trafficker in America or a compassionate physician being
persecuted because a few patients duped him.
When Dr. Hurwitz, who is now 62, was sent to prison in 2004 for 25 years on drug
trafficking and other charges, the United States attorney for Eastern Virginia,
Paul J. McNulty, called the conviction "a major achievement in the government's
efforts to rid the pain management community of the tiny percentage of doctors
who fail to follow the law and prescribe to known drug dealers and abusers."
Siobhan Reynolds, the president of an advocacy group called the Pain Relief
Network, hailed Dr. Hurwitz's singular dedication and compared his plight to
Galileo's. Some of the country's foremost researchers in pain treatment and
addiction supported his appeal for a retrial, which was ordered because the jury
in the first case was improperly instructed to ignore whether Dr. Hurwitz had
acted in "good faith." These scientists say they are upset by how their research
has been distorted by prosecutors in this case, and suppressed by the Drug
Enforcement Administration in its campaign against the misuse of OxyContin and
other opioid painkillers.
In the first trial, the prosecution accused Dr. Hurwitz of crossing the line
from doctor to trafficker by prescribing irresponsibly high doses of painkillers
to his patients in the Virginia suburbs of Washington. He was accused of
ignoring blatant "red flags" or signs that some patients were misusing or
selling the drugs. That is an emotionally powerful argument for a jury: warning
signs can seem perfectly clear with the benefit of hindsight.
But to researchers who study deceptive patients, there is no such thing as a
blatant red flag. Deception is notoriously difficult to spot, as Dr. Beth F.
Jung and Dr. Marcus M. Reidenberg of Cornell University document in a new survey
of the literature. They note, for starters, an experiment showing that even
police officers and judges - ostensibly experts at detecting fraud - do no
better than chance at detecting lying.
Doctors are especially gullible because they have a truth bias: they are trained
to treat patients by trusting what they say. Doctors are not good at detecting
liars even when they have been warned, during experiments, that they will be
visited at some point by an actor faking some condition (like back pain,
arthritis or vascular headaches). In six studies reviewed by the Cornell
researchers, doctors typically detected the bogus patient no more than 10
percent of the time, and the doctors were liable to mistakenly identify the real
patients as fakes.
When treating people with chronic pain, doctors have to rely on what patients
tell them because there is no proven way to diagnose or measure it. Also, there
is no standard dosage of medicine: A prescription for opioids that would
incapacitate or kill one patient might be barely enough to alleviate the pain of
During the first trial, the prosecution argued that it was beyond the "bounds of
medicine" for Dr. Hurwitz to prescribe more than 195 milligrams of morphine per
day, but dosages more than 60 times that level are considered acceptable in a
medical textbook. The prosecution's supposedly expert testimony on dosage levels
and proper pain treatment for drug addicts was called "factually wrong" and "without foundation in the medical literature" in a
joint statement [actually
a letter submitted to Judge Wexler 2004-12-10 ..alex...]
by Dr. Russell K. Portenoy and five other past presidents of the American Pain
Society. [Here is the
Six Past-Presidents of the American Pain Society
Express Concern Regarding "Serious Misrepresentations" in the
Testimony of the Government's Expert Witness in the Trial of Dr.
Dr. Portenoy, the chairman of the pain medicine department at Beth Israel
Medical Center, was one of the researchers who worked with the D.E.A. four years
ago to draw up guidelines on pain medication for doctors and law enforcement
officials. The guidelines assured doctors that they would be safe unless they
"knowingly and intentionally" prescribed drugs for illegitimate reasons, and
cautioned narcotics agents not to investigate doctors just because they
prescribed large quantities.
The D.E.A. published the guidelines, and then abruptly withdrew them on the eve
of Dr. Hurwitz's trial, just after his defense had indicated that it planned to
use the document at the trial. The D.E.A., which said the document had not been
properly vetted, went on to repudiate some of the guidelines and warned that it
intended to keep targeting doctors deemed suspicious because they prescribed
large quantities and ignored certain red flags.
[See War on Pain Sufferers collection
The Pathological DEA: Aftermath of the DEA FAQ Debacle]
Dr. Portenoy, who is to be a witness for Dr. Hurwitz at the retrial, has been
one of the pioneers in identifying the risks of prescribing opioids. He says the
warning signs that seem so obvious to prosecutors rarely offer clear guidance to
doctors. When a patient keeps asking for refills because he runs out of his
pills early, does that mean that he is a dealer or that he is not getting enough
medication? If a urine test shows the presence of cocaine or other illegal drugs
- as it did in some of Dr. Hurwitz's patients - should a doctor automatically
cut him off? That's what some prosecutors and narcotics agents demand, but
doctors realize that there are plenty of illegal drug users who also need pain
"Half of pain patients would have to stop taking their medicine if the rule went
out that every so-called red-flag behavior meant you couldn't prescribe," Dr.
Portenoy says. He and researchers like Dr. Steven D. Passik, a psychologist at
the Memorial Sloan-Kettering Cancer Center, have found that about half of pain
patients exhibit at least a couple of the warning signs, and that even veteran
physicians cannot agree on which signs are the most important to look for.
In a pretrial motion, Dr. Hurwitz's lawyer, Richard A. Sauber, asked the court
to bar the prosecution's expert witnesses from using the red-flag argument
because "it defies reason that any expert could testify" about something without
"scientific support." That motion was denied, however, so the flags may well be
waving during the trial.
Even Dr. Hurwitz's supporters acknowledge that he is not the ideal doctor to be
the representative for the cause of pain patients. Although his expertise in
pain medicine is well respected, some say he was gullible and reckless to the
point of incompetence. But the traditional punishments for such mistakes are
malpractice settlements and the loss of a state medical license, not a federal
investigation and 25 years in prison.
"Doctors are trained to treat patients, not to be detectives," says Dr. James N.
Campbell, a Johns Hopkins University neurosurgeon specializing in pain, who will
be another witness for Dr. Hurwitz. He says that doctors have already reacted to
the D.E.A. crackdown by changing the way they deal with the many Americans - at
least 50 million, by several estimates - who suffer from chronic pain.
"Opioids were a revolution in pain treatment during the 1990s, but doctors are
now more reluctant to use them," Dr. Campbell says. "If a doctor perceives
there's a 1 in 5,000 chance that a prescription will lead to a D.E.A. inquiry -
just an inquiry, not even an arrest - he's not going to take the chance. So the
victims are the patients."