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Dr. Hurwitz Wins Appeal - Letter from Hurwitz Family to Advocates and Former Patients

Ken Hurwitz
; 2006-08-23. Posted: 2006-08-30.
Related resources:
The Dr. William Hurwitz Collection  ;  Drug War Journalism and Advocacy archives
See also:
Ominous Implications of Hurwitz Appeal Decision? -
Bill Marcus; NFTP listServ; 2006-08-22
Unbalanced Coverage of [Hurwitz'] Successful Appeal -
Maia Szalavitz, STATS, 2006-08-23
US v Hurwitz Appeal Decision (PDF) - Widener, Traxler, and Currie; 4th Circuit Court of Appeals; 2006 -08-22
Conviction Overturned , Judge Erred in Jury Instructions - Jerry Markon; Washington Post; B01; 2006-08-23

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Dear Friends, Relatives, Former Patients and Supporters,

As some of you know, the 4th Circuit Court of Appeals yesterday (August 22) issued a favorable ruling in the appeal of Dr. William Hurwitz's conviction of fifty counts of drug trafficking arising out of his medical practice specializing in the treatment of intractable chronic pain.  The Court overturned the convictions and ordered the case to be sent back to the District Court for a new trial.  This is a great victory that was possible only through the generous and committed support of all of you.  On behalf of Dr. Hurwitz and our entire family we want to thank you for all your help.

The decision was a unanimous finding by three judges that the trial court erred in instructing the jury that it should not consider whether Dr. Hurwitz acted in good faith, in determining whether he prescribed "without a legitimate medical purpose."

While this is a stunning repudiation of the government's view that pain doctors should, in effect, be subject to imprisonment for good faith negligence, it is a narrowly drafted opinion.  The holding distinguishes between what it calls "subjective good faith" and "objective good faith," and finds "objective good faith" to be the relevant standard.  The difference can be understood as the dichotomy between the question "Was Dr. Hurwitz acting in good faith for the benefit of his patients?" and the question "Was Dr. Hurwitz acting in good faith to comply with what he reasonably believed to be an appropriate professional standard of care." While this is a far improvement from "good faith is irrelevant," it still keeps open the possibility that some prosecution medical "expert" could persuade a jury that even if the doctor was honestly seeking the best interest of his patient, he still was not reasonable to believe that the high dose opioid regimen was the appropriate standard of care.  In other words, as in a civil medical malpractice case, the case may hinge on the result of a battle of experts, rather than any analysis of the defendant's own intentions.  (One of the three judges agreed with Dr. Hurwitz that the proper standard was the "subjective good faith" test.)

For those interested, I am attaching to this email a copy of the Court's 29-page opinion, and I am pasting in below the article from today's Washington Post.
[See: Conviction Overturned - Judge Erred in Jury Instructions] Also attached is a poem by Dr. Hurwitz, titled, "The Appeal."

As you can imagine, the family now has numerous difficult decisions to make regarding how to proceed.  Yesterday's ruling is a critical and very welcome victory, but the war is far from over...for Dr. Hurwitz and for pain doctors and their patients generally. It is almost certain that we will be facing a new trial within the next year.

We will stay in touch.

Thank you again for your support.

Best regards,

-- Ken Hurwitz
On behalf of the Hurwitz Family
23 August 2006



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Originally posted: 2006-08-30

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