Dear Friends, Relatives, Former Patients and
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
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
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.
-- Ken Hurwitz
On behalf of the Hurwitz Family
23 August 2006