The Pain of Being Hurwitz

By Jacob Sullum, Reason. Posted April 4, 2005.

In December, after a federal jury convicted McLean, Va., pain doctor William Hurwitz of running a drug-trafficking operation, the foreman told The Washington Post "he wasn't running a criminal enterprise." Don't bother reading that sentence again; it's not going to make any more sense the second time around.

Hurwitz, who is scheduled to be sentenced on April 14 and will go to prison for life if U.S. District Judge Leonard Wexler follows the prosecutors' recommendation, was charged with drug trafficking because a small minority of his patients abused or sold narcotic painkillers he prescribed for them. Prosecutors argued his practice amounted to a "criminal enterprise" based on a "conspiracy of silence"--i.e., a conspiracy in which Hurwitz did not actually conspire with anyone--because he charged for his services and should have known some of his patients were faking or exaggerating their pain.

Judging from the comments of the jury foreman, Ralph Craft, the jurors did not really buy this theory. Perhaps they still harbored the legally unsophisticated notion that drug traffickers are people who engage in drug trafficking. But they convicted Hurwitz anyway, because they didn't like the way he practiced medicine.

"I'm not an expert," Craft conceded, while expressing the opinion that Hurwitz was "a little bit cavalier" in prescribing opioids. "He ramped up and ramped up the prescriptions very quickly," he said. "This is stuff that can kill people. He should have been extra careful."

Craft and his fellow jurors were appalled by the sheer number of pills Hurwitz prescribed. "The dosages were just astounding," he said, calling them "beyond the bounds of reason."

As an example, Craft cited a prescription for 1,600 pills a day. As Hurwitz explained during the trial, this particular prescription, which was never filled, resulted from a nurse's calculation error that was discovered at the pharmacy. But it's true that many of his patients were taking very high doses of painkillers, doses that would kill someone unaccustomed to narcotics.

Although the jurors apparently considered such doses inherently suspicious, they are necessary for treating severe chronic pain because patients develop tolerance to the analgesic effects of narcotics. They are safe because patients also develop tolerance to the potentially fatal respiration-depressing effects of these drugs. Responses to pain medication vary from person to person, and there is no a priori limit to how high doses can be "ramped up."

The prosecution deliberately obscured these points during Hurwitz's trial, relying on the jurors' ignorance of pain treatment principles to convict him. The government's main medical expert, Michael Ashburn, testified that consumption of high narcotic doses by patients with chronic pain who do not have cancer is a sign of drug abuse.

In a letter they wrote before the verdict, six past presidents of the American Pain Society rebuked Ashburn for this statement, along with several other misrepresentations of pain treatment standards. "We are stunned by his testimony," they said. "Use of 'high dose' opioid therapy for chronic pain is clearly in the scope of medicine."

As these pain experts recognized, Hurwitz was not the only person on trial at the federal courthouse in Alexandria. So was every doctor who has the courage to risk investigation by treating people who suffer from severe chronic pain with the high doses of opioids they need to make their lives livable.

In poignant letters to Judge Wexler, who has fairly wide latitude in punishing Hurwitz now that the U.S. Supreme Court has made federal sentencing guidelines merely advisory, dozens of his former patients recount how he saved them from constant agony caused by migraines, back injuries, reflex sympathetic dystrophy and other painful conditions that left them disabled, homebound, despondent, and in some cases, suicidal. They outline the difficulties they had in getting adequate treatment before they found Hurwitz and the trouble they've been having since the government put him out of business.

"Good pain doctors are hard to find," writes one. "I am saddened that Dr. Hurwitz is branded a criminal for helping me and helping people like me." Another argues that Hurwitz's "crime"--trusting his patients--was one of his greatest virtues. "It is to Dr. Hurwitz's credit," he says, "that he chose to trust that his patients were genuinely seeking relief from pain that cannot be objectively measured. This trust is, in my experience, all too rare."

Threatening doctors with prison for viewing their patients with inadequate suspicion will make it even rarer.

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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