In a closely watched case with national
implications, a federal appeals court has granted a new trial to a well known
Northern Virginia pain doctor sent to federal prison for 25 years as a drug
dealer. Pain patient advocates and medical associations praised the ruling in
the case of Dr. William Hurwitz, who was convicted in late 2004 of 50 counts in
a 62-count indictment, including conspiracy to distribute controlled substances.
Hurwitz appealed his conviction, arguing that trial Judge Leonard Wexler erred
by not instructing the jury that Hurwitz should not be convicted if he acted in
"good faith." Typically in cases where the quality of medical care is in
question, such matters are decided by medical boards or civil courts in the form
of malpractice suits. Only doctors who are not prescribing in good faith that
they are in line with accepted medical practices face criminal charges. In his
jury instructions, Judge Wexler removed Hurwitz' only effective defense.
Hurwitz faces reporters, 1996;
Photo: Skip Baker
federal prosecutors, who pointed to multiple examples of high-dose prescriptions
Hurwitz had written and who claimed he should have recognized some of his
patients to be addicts or dealers, Hurwitz was nothing more than a Dr. Feelgood,
no different from -- or perhaps worse than -- the kid slinging crack on the
street corner. But for patient advocates and a growing number of medical
professionals, the case was the highest-profile example yet of a Justice
Department and DEA creating a chilling climate toward doctors' willingness to
treat chronic pain with opioid pain medications.
That is why even though even some questioned Hurwitz's prescribing practices,
his appeal nevertheless won the support of professional organizations like the
American Academy of Pain Medicine, the American Pain Foundation, and the
National Pain Foundation, all of
which filed briefs in his support. Also joining the fray was the Drug Policy
Alliance, which filed its own brief on behalf of pain specialists.
National Foundation for the Treatment of Pain brief; and,
American Association of Physicians and Surgeons Amicus Curiae]
A three-judge panel in the 4th
US Circuit Court of Appeals in Richmond agreed with Hurwitz and his allies in
its opinion Monday [Hurwitz
Appeal Decision]. The panel held that
Judge Wexler had erred when he told jurors they could not consider whether
Hurwitz had acted in "good faith" when he prescribed large doses of opioid pain
relievers like Oxycontin to patients.
doctor's good faith in treating his patients is relevant to the jury's
determination of whether the doctor acted beyond the bounds of legitimate
medical practice," wrote Judge William Traxler. "The district court effectively
deprived the jury of the opportunity to consider Hurwitz's defense." That was a
fatal error, the panel held. "We cannot say that no reasonable juror could have
concluded that Hurwitz's conduct fell within an objectively-defined good-faith
standard," wrote Traxler.
"We are very gratified by this decision," said Dr. Jane Orient, executive
director of the libertarian-leaning
Association of American Physicians and Surgeons, a group that has been in
vanguard of the medical profession on the issue of protecting pain doctors and
patients. "Overturning one of these verdicts is something that almost never
happens, and we hope it represents a tipping point," she told DRCNet. "We hope
that the courts will finally begin to pay attention to the fundamental issues of
justice involved here. A doctor is not a drug dealer, and neither is he a
policeman. Doctors cannot be held responsible for patient misbehavior."
"I'm delighted," said Dr. Frank Fisher, a California physician originally
charged with five counts of murder over his prescribing practices by overzealous
prosecutors and state agents, but who was eventually completely exonerated.
Trials of Dr. Frank Fisher:
the Cost of Exoneration]
"This means they will have to let Billy out. The
appeals court was absolutely correct in its decision," he told DRCNet.
The appeals court decision is a victory for Hurwitz and his supporters
[most importantly, the
Pain Relief Network],
but it is only one battle in a larger war over who controls the prescribing of
pain medications -- the medical profession or the cops -- and in the meantime,
doctors and patients are the casualties.
"They are still harassing and investigating doctors," said Orient.
Prosecuted Physicians and Pain
Politics] "And that in itself can
destroy your practice. There are still doctors languishing in prison because
they tried to do their best for their patients and there are still patients
having difficulty finding physicians willing to do the pain treatment necessary
to make them functional instead of bed-ridden suicidal people in severe pain,"
she said. "More doctors are aware of the extreme risk they take in getting
involved with chronic pain patients. The DEA wants them to treat patients like
they were suspected criminals."
Fisher pointed to the case of Dr. Richard Heberle, an Ohio physician, of how
devastating even defending oneself from such charges can be.
"Look at what happened to Dr. Heberle," he said.
"He won, but his practice is ruined, his reputation is ruined, his life is
ruined. The only thing worse than winning one of these cases is losing one, or
maybe coming down with a bad case of chronic pain."
Erie, PA: Dr. Klees
Incarcerated, Dr. Heberle Exonerated, Pain Patients Abandoned; and,
No Convictions - But [Dr. Fisher's] Practice is in Ruins]