Travesty of Justice

By David Borden, DRCNet. Posted December 23, 2004.

Not a day goes by in the drug war without something happening that shouldn't. This week an innocent and heroic doctor was convicted in a court, by a jury that wasn't afforded information they should have had, of charges that should never have been brought, under laws that shouldn't exist. Soon he will be given a prison sentence that any right-thinking person should regard as obscene.

He is William Hurwitz, the most prominent advocate, and at one time practitioner of, aggressive treatment for severe chronic pain for patients who suffer from it. I have written about Dr. Hurwitz since 1996, the year the Board of Medicine of Virginia yanked his license, to his patients' detriment, and I have met him on multiple occasions, including the day he received an award from the American Society for Action on Pain for the risks he took.

One of those patients was David Covillion, a former police officer who became disabled from a fight with a suspect. Covillion, like most of Hurwitz's patients, was not able to find another doctor willing to treat him. His pain was so great that he saw no way out but to end his life. He recorded a dramatic videotape the day before, explaining his decision, a tape that was played on 60 Minutes when it reported on the case.

The media, unfortunately, has not been clear in its more recent reporting on this history. Hurwitz, in fact, was essentially exonerated by the medical board, which restored his license, though not before much damage was done. He was able to return to practicing medicine and treating pain – until two years ago, when, knowing that the federal investigation was coming, he closed his practice. He wanted to give his patients a chance – whatever little they had of one – to find other doctors willing to treat them. Two and a half months after Hurwitz announced his decision, the feds raided his office and home.

It is a simple concept – one would think – that patients should get what they need for pain. But the drugs patients need for pain are also among the drugs that drug police make a living hunting down. The enforcement bureaus devoted to that nexus – anti-diversion bureaus – must draw blood to justify their existence and expand. The convictions they have now obtained against Dr. Hurwitz – which will put him in prison for life if the situation goes un-remedied – are bad news for pain patients. As one advocate told the media on getting the news, doctors are going to "run for the hills" whenever they meet a pain patient from now on. Who can blame them? Life in prison is a steep cost to risk for any cause, even the cause of obeying one's physician's oath.

It is that oath that Hurwitz was following. Frank Fisher, another pain doctor who had (relatively) better luck, has described Dr. Hurwitz as the most ethical of the pain doctors – the most ethical because he would always treat a pain patient for the pain, absent proof of the patient's misconduct. This included the patients other doctors most feared to treat – the patients with addictions, the poor, those with an unsavory look – those for whom the risk to the doctor of being fooled and ending up facing a prosecution is the greatest.

But as Dr. Hurwitz told the jury when he took the stand, to deny a patient pain treatment is tantamount to torture. If he had proof that patients were diverting the drugs, he would cut them off. But without proof, he was obligated to treat the pain they seemed to have, because to do otherwise would violate medical ethics. Dr. Hurwitz was unwilling to torture his patients by denying them medicine, even though that was what was needed to protect himself from the drug police.

This is the basic issue of the case, the issue that Hurwitz and his lawyers tried to convey to the jury, but there is more to it. Other issues are the misuse of the law by federal prosecutors, the lack of clarity in the law, the sheer length of the federal mandatory minimum sentences, and the willingness of the judge to aid and abet the prosecutors in their successful endeavor to obscure the issue for the jurors. Judge Wexler made a series of bad decisions that will probably constitute the basis for the appeal.

Wexler would not instruct the jury clearly, in response to their query, that it is legal to prescribe opiates to people with addictions to them, so long as the prescriptions are for pain control. Wexler did not communicate the "good faith" standard, that doctors who prescribe in good faith are innocent, even if the faith they showed some of their patients turns out to be misplaced. Both of these are errors of law which biased the jury's deliberations toward conviction.

Wexler also disallowed the defense from presenting a document published recently by DEA and pain treatment experts to the jury, because the DEA had withdrawn the document by that time. Would it not have been more in the spirit of truth – the "whole truth," as the witness oath goes – to show the jury the document, as well as the DEA's letter explaining their withdrawal of it, as well as the response by DEA's former physician partners which outlined how distorted and dishonest DEA's reasons really were, as well as the evidence that is suggestive that DEA withdrew the document to improve their chances of convicting Hurwitz himself? And there were other errors on Wexler's part.

I don't know whether Judge Wexler was biased or whether he meant well and was merely manipulated into his bad decisions by smart prosecutors. I also don't know whether prosecutors McNulty or Lytle or Rossi meant well but are merely misguided – truthfully I consider their motives deeply suspect, but that is only a speculation. Regardless, they are all participants in, and perpetrators of, a profoundly destructive attack on the rights and lives of pain patients everywhere. Some of the people reading this editorial are patients who may regard their hopes for relief from pain as having been dealt a blow yesterday in the courthouse. All of us could be in that situation one day and become the victims of McNulty and Lytle and Rossi and Wexler.

But they are also perpetrators of a travesty of justice against an individual – a lynching, in effect – of an innocent doctor whose only crime is that he would not torture his patients by denying them the medicine they needed. And that is not what the law is meant to achieve.

In 2004 we do not need or want martyrs, but we seem to have them. I am sure Dr. Hurwitz does not want to spend years in prison awaiting his appeal, nor spend the remainder of his life there if the appeal fails and no other relief is obtained. But if that is what happens, the reason may at least be some small source of comfort and large source of pride: He would not torture.

David Borden is executive director of DRCnet.

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