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4th Circuit Reverses Conviction of "Pain Doctor"

By Jeralyn, Section Court Decisions
Posted on Wed Aug 23, 2006 at 08:34:48 PM EST
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Good news for pain doctor William Hurwitz. The 4th Circuit Court of Appeals has overturned his conviction and 25 year sentence for drug-trafficking because the trial judge failed to give a "good faith" instruction to the jury.

The decision again galvanized the national debate that the Hurwitz case had
come to symbolize: whether fully licensed doctors prescribing legal medication to patients in chronic pain should be subject to prosecution if their patients abuse or sell the drugs. Patient advocate groups strongly supported Hurwitz and expressed concern that his conviction would have a chilling effect on pain doctors.

....Jurors convicted Hurwitz on 50 counts of a 62-count indictment, including conspiracy to distribute controlled substances. They acquitted him on nine counts and deadlocked on three. Hurwitz was sentenced to 25 years in prison.

The text of the opinion is here(pdf).

Good faith was at the heart of Hurwitz's defense. Hurwitz did not dispute the bulk of the government's factual evidence -- that is, he did not argue that he did not prescribe the narcotics that were the basis for the charges against him. Instead, Hurwitz argued that the manner in which he used narcotics to treat chronic and debilitating pain was a medically proper approach to a difficult medical issue. By concluding that good faith was not applicable to the § 841 charges and affirmatively instructing the jury that good faith was not relevant to those charges, the district court effectively deprived the jury of the opportunity to consider Hurwitz's defense.

Thus, while we recognize that the government's evidence was strong, we simply cannot conclude that the district court's error in removing good faith from the jury's consideration was harmless."

It may not be smooth sailing though for Hurwitz at his retrial. The Court also held that the good faith standard to be applied must be objective rather than subjective:

"In this case, however, we are squarely presented with the question of whether, in a § 841 prosecution against a doctor, the inquiry into the doctor's good faith in treating his patients is a subjective or objective one. We believe that the inquiry must be an objective one, a conclusion that has been reached by every court to specifically consider the question."

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    4th Circuit Reverses Conviction of "Pain Doctor" | 10 comments (10 topical)
    Re: 4th Circuit Reverses Conviction of "Pain Docto (none / 0) (#1)
    by Talkleft Visitor on Thu Aug 24, 2006 at 09:13:30 AM EST
    I'm not so sure this guy shouldn't have been prosecuted. I glanced through the facts in the opinion and some are pretty outrageous. One that stands out:
    Between July 1999 and October 2002, Hurwitz prescribed to one patient a total of more than 500,000 pills, which amounted to more than 400 pills per day. Towards the end of the time that Hurwitz treated the patient, the prescribed dosage included 1,600 5-milligram Roxicodones (a non-timed release version of Oxycontin) per day. Still another patient was prescribed 10,000 Roxicodones as a one-month supply. Patients with limited visible sources of income spent tens of thousands of dollars a month on narcotics prescribed by Hurwitz.
    Given that "Hurwitz did not dispute the bulk of the government's factual evidence -- that is, he did not argue that he did not prescribe the narcotics that were the basis for the charges against him[,]" I'm not sure that TL's framing of the issue as "whether fully licensed doctors prescribing legal medication to patients in chronic pain should be subject to prosecution if their patients abuse or sell the drugs" is really accurate. Out of the 62 counts brought against him, I'm sure some involved individual abusers and persons in chronic pain. But I think the government really got involved because the doctor was supplying dealers. I think the appeals court made the right call on overturning the sentence because of the jury instruction, but I don't think the prosecutors were out of line in going after this guy. For a jury to convict a Doctor ( of 50 counts of drug trafficking by a twelve person jury on charges carrying a 25 year sentence, is goign to take a little more than prescribing an extra dose of pain meds to a cancer patient. The public has tremendous respect for doctors and they can afford good lawyers. Jurors are also going to have a lot of sympathy for patients in truly chronic pain that might become addicted. The conduct needed to be egregious to be prosecuted, and it sounds like it was.

    Re: 4th Circuit Reverses Conviction of "Pain Docto (none / 0) (#2)
    by TomK on Thu Aug 24, 2006 at 09:16:14 AM EST
    I live in a rural area and work with elderly people. There are huge doctor shortages, and the elderly people are acutely aware and nervous of this. I really think "The GOP and DEA are trying to put your pain doctors in jail" and "The Democrats want the doctors that treat pain in clinics instead of jails." and "Ruthie Smith [cue to 5 ft 4 67 pound woman with oxygen tubes lying distorted in a bed] is 102 years old and suffers from chronic pain and arthritis and back injuries, and can't get any pain medicine because the DEA locked up her doctor for prescribing medication." would play really well to the AARP crowd. I also think this could be part of a general attack on republican healthcare policies. "Republicans, who lock up good pain doctors when there is already a shortage, don't want Medicare to negotiate for price discounts with pharmacuetical companies, and that's why you have to pay 3,000 dollars in gap coverage." Just a suggestion to people trying to win the votes of these people. Doctor shortages and expensive medicine are more scary to seniors, especially poor rural seniors then even terrorism.

    Re: 4th Circuit Reverses Conviction of "Pain Docto (none / 0) (#3)
    by SeeEmDee on Thu Aug 24, 2006 at 09:59:13 AM EST
    OxyContin has a very steep 'tolerance' buildup; it takes larger and larger amounts to equate the previous level of analgesia. Large numbers of pills do not necessarily indicate 'trafficking' but the reality of that tolerance factor. I work with someone who was injured so seriously in the Navy that he was almost cut in two and they literally had to patch him back together. He is dependent upon very large amounts of opiate and opioid painkillers just to get through the day without screaming in agony. For legal reasons more than any other he has to see a doctor twice a year to be evaluated. With his meds, he functions very well on the job. The meds effects are purely physical, not psychotropic. He doesn't get 'high' from them at all, they just keep the barest edge of the pain away. Without them, he's stated that he would have found a home for his dogs and then blown his brains out...as one of Dr. Hurwitz's patients who have been denied the same kinds of meds for the same reason had done. But because of political grandstanding on the part of the DEA, in compensation for their inability to do anything substantial about illicit drugs, the DEA decides to go after angels of mercy more than they do about the bad guys. This is exactly the sort of thing that began happening right after the first drug laws came into being: doctors were being targeted then as they are now...and for the same reasons back then as they are today: easy pickings, nothing else. (The links provided lead to an eminently readable, factual graphic primer on how we got into this mess. I recommend that everyone read the whole thing to become better acquainted with how the mechanics of 'mission creep' have caused the War on Drugs to become the huge mess it is. Particularly any of its' apologists.)

    Re: 4th Circuit Reverses Conviction of "Pain Docto (none / 0) (#4)
    by Talkleft Visitor on Thu Aug 24, 2006 at 10:30:44 AM EST
    SeeEmDee Even your injured friend doesn't need 400 pills per day or 10,000 Roxicodones a month. The doctor they went after here was selling drugs to dealers - that's why they took his license. I'm all for treating chronic pain aggressively and don't doubt for a minute that the doctor helped a lot of people who really were in chronic pain. But the doctor here also really abused his medical license. This isn't a great analogy, but imagine there's a great child cancer doctor who treats and saves thousands of sick children but has molested 3 patients. The state medical board just isn't going to let that doctor keep his license even if he's a net force for good - and I'm not sure that they should.

    Re: 4th Circuit Reverses Conviction of "Pain Docto (none / 0) (#5)
    by Talkleft Visitor on Thu Aug 24, 2006 at 11:05:51 AM EST
    What's the difference between an objective and subjective standard of good faith?

    Re: 4th Circuit Reverses Conviction of "Pain Docto (none / 0) (#6)
    by Talkleft Visitor on Thu Aug 24, 2006 at 12:17:38 PM EST
    What's the difference between an objective and subjective standard of good faith?
    A subjective standard looks at whether the doctor actually believed he was acting in good faith (i.e. what was in the doctors head at the time). An objective standard would looks at whether a reasonable doctor in the same circumstances would believe he or she was acting in good faith.

    Re: 4th Circuit Reverses Conviction of "Pain Docto (none / 0) (#7)
    by SeeEmDee on Thu Aug 24, 2006 at 12:18:33 PM EST
    Hues, I can see your point of view, but there's a much larger concern than just 'diversion'. And that concern is to what extent should we allow the government to intevene in the doctor/patient relationship beyond the confidentiality aspects. And it cuts to the very heart of the DrugWar. The fault for the diversions of meds to the street lies with those selling the diverted meds, not the doctor. The doctor was not receiving any remunerations beyond his fees, so he was not engaged in trafficking. But even with the diversions, the questions must be asked: how much harm was done to those honest patients formerly in his care by his incarceration? How much harm was caused by The State by having other doctors become too frightened to adequately meet his patient's needs for fear of receiving the same treatment from law enforcement? According to the writings I've seen regarding the matter, he cooperated fully, never expecting that he would be the recipient of the treatment he did. By doing so, they have created a storm within the medical community, and risk a backlash that would prove very embarrassing. For, as I mentioned, this cuts all the way to the core of the War on Drugs: how much control should we allow The State to have in matters of personal health? The Association of American Physicians and Surgeons, of which Dr, Hurwitz is a member, has been following this case very closely, and it's worth a few minutes to see what many of its' members feel is the real rationale behind these actions.

    Re: 4th Circuit Reverses Conviction of "Pain Docto (none / 0) (#8)
    by Bill Arnett on Thu Aug 24, 2006 at 12:21:47 PM EST
    What I don't understand is why ANYONE would lend credence to the DEA when, out of sheer desperation and a proven inability to have a SERIOUS effect in the "war on drugs", which are more available, more powerful, and cheaper than ever before, they choose to go after licensed practitioners of medicine instead of concentrating on "the largest opium crop and more heroin than ever in history". Of course, I suppose it's a little harder to catch dealers of actual heroin, black tar heroin, cocaine, crack, crank, goof-balls, reds, black beauties, etc., than it is to bust caring physicians trying to alleviate intractable chronic pain. They have offices. Yellow page ads. Hospital affliations. Licenses. Pumps up the stats, y'know. Screw the people.

    Re: 4th Circuit Reverses Conviction of "Pain Docto (none / 0) (#9)
    by Talkleft Visitor on Thu Aug 24, 2006 at 12:45:38 PM EST
    Huesofblue: Thanks for clearing that up.

    Re: 4th Circuit Reverses Conviction of "Pain Docto (none / 0) (#10)
    by Talkleft Visitor on Thu Aug 24, 2006 at 01:10:25 PM EST
    they choose to go after licensed practitioners of medicine instead of concentrating on "the largest opium crop and more heroin than ever in history".
    I'm not sure that they were making a concerted effort to prosecute doctors here. I think the facts of this case were so eggregious that the DEA and the prosecutor felt compelled to act. The arrested some dealers with a lot of drugs and the dealers told the police that the doctor was their source - the police are compelled to investigate. When they did they found things like this:
    Between July 1999 and October 2002, Hurwitz prescribed to one patient a total of more than 500,000 pills, which amounted to more than 400 pills per day. Towards the end of the time that Hurwitz treated the patient, the prescribed dosage included 1,600 5-milligram Roxicodones (a non-timed release version of Oxycontin) per day.
    1,600 pills of Oxycontin a day!?!? With these kinds of facts, they had to prosecute.
    the investigation of Hurwitz stemmed from reports by local law enforcement agencies of "an unusually high incident of arrests of individuals for Distributing prescription narcotics in the Northern and Southwest region of the state of Virginia, and rural areas of West Virginia and Tennessee." J.A. 78. According to Agent Lucas, "[a] significant number of these arrests resulted in the cooperation of individuals who revealed that the source of their prescription narcotics was Dr. William E. Hurwitz of McLean, Virginia."
    The doctor was not receiving any remunerations beyond his fees, so he was not engaged in trafficking.
    I can't figure out why he'd do it then. I have to imagine he was charging some sort of premium or receiving some sort of compensation for the risk of writing these kinds of prescriptions. They have him on tape saying:
    "so I have kind of a huge conspiracy of silence because I, in fact, even, even knowing what I'll call the suspicious nature of you guys, assumed that you weren't stupid enough to -- to not protect my practice and preserve your own . . . access to medications." S.A. 104. Hurwitz told another patient to get an x-ray or an MRI "for the files to cover our butts." J.A. 3089.
    I don't think they should go after doctors generally, but I think this guy was flagrantly disregarding the law. Here's how it got started:

    4th Circuit Reverses Conviction of "Pain Doctor" | 10 comments (10 topical)