A Moral Fog

Last week witnessed the conclusion of a sad chapter in an ongoing saga; the sentencing of Dr. William Hurwitz, a well-known physician specializing in pain management, to 25 years in prison and a $2 million fine for purported drug dealing involvement.

Supporters of Dr. Hurwitz say that his decision to treat pain aggressively with opioids (narcotics), in the way he did, derived from an ethical principle applied to its logical conclusion. Physicians are obligated by their medical oath to properly treat pain, which in general means relieving to the best feasible extent. To deny a patient adequate pain treatment is "tantamount to torture," in Hurwitz' own words. If you treat pain, then some of the people seeking opioid prescriptions from you inevitably will turn out to be drug diverters or abusers. But it is unethical to punish actual pain patients -- to torture them by denying them medicine -- just because such people are out there. So Hurwitz chose to err on the side of prescribing for pain rather than not doing so. Because his ethics, and his interpretation of them, required him to do so, drug warriors notwithstanding.

I agree with those ethics. It may be that reasonable people can believe that some degree of non-treatment of real patients should be risked in order to "balance" that priority with the priority of diversion control. I don't agree with that -- partly because denial of pain treatment really is torture, in my opinion -- and partly because I understand that the economics of the drug trade and prohibition renders diversion control ineffective regardless. If we can get to a point where a debate on the issue is taking place at that level, I'm not going to call anyone unreasonable who is rationally and sincerely trying to sort it out. But I agree with Hurwitz on this point.

I also believe that Dr. Hurwitz is in fact innocent. No actual evidence was ever presented that he knew that any of his patients were diverting or abusing drugs. And as one of the few people in the world holding both a medical degree and a law degree, Hurwitz would have been readily able to earn millions of dollars per year; a financial motive for the crimes of which he was accused simply did not exist. But whether my faith in Dr. Hurwitz is on target or not, even that may ultimately only have secondary importance.

There are two primary issues at stake. One is that it should have been doctors who decided whether Hurwitz had acted properly, but was not. Russell Portenoy, one of the world's top pain specialists, moved the issued forward this week by saying as much to the Los Angeles Times.

The other is the sheer lack of ethics displayed by prosecutors, by their witnesses, and sadly even by the judge himself, Leonard Wexler. I have it on good authority that the prosecutor arguing for a life sentence yesterday lied repeatedly during his performance. The judge invoked a tape he claims he saw, but which was never entered into evidence, to justify harsh treatment of Hurwitz. For a variety of reasons this is not very plausible. But even if it turns out to be true, it would still conflict with the spirit (albeit not the letter, perhaps) of the Supreme Court's recent pronouncements on these issues.

A witness for the prosecution, an addict in recovery, told of how he squandered his whole inheritance on drugs, conjuring the image of hundreds of thousands of dollars if not millions down the drain. He didn't mention, nor did anyone, that it was a mere $20,000, a lot to him perhaps but not a lot. Prosecutors leveraged their power to prosecute that individual and others, in order to get them to testify against Hurwitz in exchange for leniency -- a practice that courts have called bribery, though the Supreme Court ultimately did not uphold that. But the unreliability of testimony made under such duress is clear, and it is unethical to use it or allow it.