Healers and Dealers

By Jacob Sullum, Reason. Posted November 25, 2004.

Prosecutors say McLean, Virginia physician William Hurwitz, who is on trial at the federal courthouse in Alexandria, knowingly supplied OxyContin and other narcotic painkillers to patients who sold them on the black market. "A self-proclaimed healer, he crossed the line to dealer," Assistant U.S. Attorney Mark Lytle declared in his opening statement. "He thought he could hide behind the pain he treated."

When Hurwitz was indicted last fall, U.S. Attorney Paul McNulty called him a "major and deadly drug dealer." Charged with 62 counts related to what prosecutors describe as a multistate drug trafficking conspiracy, Hurwitz faces a possible life sentence.

Yet the details of the government's case do not fit the picture it has tried to paint. Instead, they suggest that if Hurwitz is guilty of anything, it's inadequate skepticism and excessive compassion. By prosecuting him for trusting his patients too much, the government is criminalizing the sort of mistake doctors already are so keen to avoid that they routinely turn away or undertreat patients in pain.

Over the years Hurwitz has acquired a reputation as one of the rare doctors brave enough to prescribe for patients with severe chronic pain the high doses of opioids they need to make their lives bearable. Inevitably, such a doctor will attract people who want narcotics to get high or to sell them on the street.

The government does not dispute that Hurwitz has helped hundreds of desperate patients who unsuccessfully sought pain relief from doctors who were afraid to risk unwanted attention from the government by treating them. But it faults him for "willful blindness" in prescribing "obscene amounts of pills" to patients who were selling or abusing them, including three who took overdoses.

A former patient called as a prosecution witness testified that "I had a lot of pain, but I exaggerated it, trying to get the drugs." On cross-examination, he added that he had "played a lot of doctors" over the years. He characterized Hurwitz as naive, saying: "He was concerned about me and my wife [also a patient]. Dr. Hurwitz is always concerned."

Such testimony does not make Hurwitz look like a drug trafficker. It makes him look like a sincere healer duped by tricky patients. Although prosecutors portray Hurwitz as a drug kingpin, they have no evidence that he received any money from drug sales. Instead, they say he profited by charging patients for his care.

Prosecutors cite Hurwitz's detailed medical records to support their allegation that "he prescribed incredibly large amounts of narcotics, well outside the boundaries of proper medicine." But as Patrick Hallinan, one of Hurwitz's attorneys, noted, "These medical records are in stone. You think someone involved in a scam selling pills would put it down in the records?"

That does not necessarily mean that every aspect of Hurwitz's practice was beyond reproach. But by threatening to imprison doctors for being less suspicious than the Drug Enforcement Administration thinks they should have been, the government puts the fear of pain patients into even the most scrupulous physicians.

Russell Portenoy, a prominent pain expert, warns that a conviction in this case would have a "strong chilling effect" on pain treatment. "I have a very profound concern," he told the Washington Post, "that the appropriate way to deal with these issues is not through criminal prosecution but through an evaluation of medical practice."

In this connection, it's significant that the Virginia Board of Medicine, reviewing allegations similar to those underlying the Justice Department's case, chose not to revoke Hurwitz's license but to place him on probation. It's also telling that when federal investigators discovered that some of Hurwitz's patients were selling the drugs he prescribed, they chose to build a case against him rather than alert him to the diversion they supposedly were trying to prevent.

"In this particular area," Hurwitz told the Post before his indictment, "doctors are expected to have perfect knowledge of everything a patient does. That presumption is invalid. Nobody could treat pain if they're going to hold doctors to that standard."

In a pamphlet published last August, the DEA conceded that "any physician can be duped"; that it's hard to distinguish between addicts and patients in pain; and that prescriptions that look suspicious to the government may be perfectly justified. The pamphlet disappeared from the DEA's website last month, a few weeks after Hurwitz's attorneys tried to introduce it as evidence in his trial.

Jacob Sullum is a senior editor at Reason and the author of "Saying Yes: In Defense of Drug Use" (Tarcher/Putnam).

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