Federal Drug Conviction of Dr. William Hurwitz Overturned


The 4th Circuit Rules That Good Faith IS Relevant to Whether or Not Dr. Hurwitz is Guilty of Violating Federal Drug Laws



August 22, 2006 - This morning, a stunning defeat was handed to the United States Government as the notoriously "tough on crime" 4th Circuit overturned the Federal drug conviction of Dr. William Hurwitz and remanded the case to the lower court for a new trial.

Siobhan Reynolds, longtime supporter of Dr. Hurwitz and President of the Pain Relief Network which is spearheading the pain community's opposition to the government crackdown on Americans in chronic pain and the doctors who care for them, was elated to learn of the court's decision,

"Dr. Hurwitz's trial was such a preposterous travesty, it is a great relief that the 4th found reason to reverse. Reading the opinion, however, only makes it all the more clear, that the legal issues surrounding the criminalization of medicine are so convoluted, it's no wonder doctors wont chance it and relieve the pain of this country's infirmed."

Dr. Frank Fisher, a consultant to Pain Relief Network and a victor against government overreaching in the State of California was happy for his colleague but concerned about the implications of the decision.

"The concept of good faith is discussed in terms of objective and subjective standards. The frightening thing about determining good faith on an objective basis is that it becomes a matter of examining whether the defendant's medical conduct conformed with the opinions of "expert" witnesses, rather than considering the defendant's good intentions towards his patients and his corresponding lack of criminal intent."

"The result is that the well-intentioned physician had better not ever do anything to which any of his colleagues might take exception."

When Congress passed the Controlled Substances Act back in 1970, it was widely believed to exempt the treatment of pain when it occurred during the practice of medicine.

Now, the 4th has sprung Dr. Hurwitz, but has simultaneously perverted the original rationale for the law

"drug prohibition has officially found a home inside of good faith medicine. While the millions of Americans in pain already knew that doctors were forced to act as law enforcement officers when it comes to pain, here the 4th validates this disturbing reality," says Siobhan Reynolds. "We are going to challenge this law based on what its enforcement is doing to the sick people of this country."



Contact: Siobhan Reynolds 505-603-8875
Dr. Frank Fisher 510-233-3490




United States v. Hurwitz pdf







'Good Faith' at Issue
in Pain Doctor's Appeal



03-17-2006 WILLIAMSBURG, Va. - A jury should have been told it could consider whether a doctor acted in good faith in prescribing massive doses of OxyContin and other painkillers for his patients, the physician's lawyer told a federal appeals court Friday.

A three-judge panel of the 4th U.S. Circuit Court of Appeals, meeting at the College of William and Mary Law School, heard arguments in the case of prominent pain-management specialist William E. Hurwitz. A ruling is expected in a few weeks.

Hurwitz, who treated hundreds of patients from more than 39 states at his McLean clinic, was convicted in December 2004 of 50 of 62 counts, including conspiracy and drug trafficking resulting in a patient's fatal overdose. He is serving a 25-year sentence in federal prison in Cumberland, Md.

"He's doing OK," Hurwitz's brother, Kenneth Hurwitz of New York, said after the appeals court hearing. "He's confident he's in the right legally and that this conviction will be reversed."

William Hurwitz, 60, frequently prescribed 100 tablets or more of OxyContin for patients - many of them obvious drug addicts and dealers, prosecutors said. One patient was prescribed 1,600 pills a day, according to testimony at Hurwitz's trial.

An FBI agent's affidavit said 21 percent of Hurwitz's patients had criminal records. Prosecutors said Hurwitz's waiting room was at times filled with groggy patients with track marks on their arms from drug abuse.

Defense attorneys contended at trial that Hurwitz meant well but was manipulated by drug-seeking patients. However, U.S. District Judge Leonard Wexler's instructions to jurors barred them from considering whether Hurwitz acted in good faith.

Wexler's directive "contravenes 80 years of unbroken precedent" in similar cases, Hurwitz lawyer Lawrence S. Robbins told the appeals court.

"The rules are the same whether he's a bad doctor or Albert Schweitzer," Robbins said.

But federal prosecutor Richard Cooke argued that good faith was not applicable in Hurwitz's case because the doctor acknowledged that he knew he was prescribing to addicts and dealers.

"A doctor who knowingly exceeds accepted medical practice cannot use good faith as a defense," Robbins said.

Hurwitz attracted a national following by prescribing huge doses of opiates for chronic pain sufferers, once touting his unconventional theories on the CBS show "60 Minutes." One of those patients, Linda Lalmond, died within two days after Hurwitz prescribed morphine in doses 40 times higher than anything she had previously received.

Several of Hurwitz's supporters testified at his trial that Hurwitz relieved them of crippling pain that other doctors refused to treat.

"Even if a person is abusing drugs, it doesn't mean he doesn't deserve to be treated for pain," Kenneth Hurwitz said Friday. "That's clearly not per se outside the bounds of accepted practice or outside the bounds of the law."

State regulators suspended Hurwitz's medical license several times, including in 1991 and again in 1996, when he was ordered to attend classes to learn how to spot patients trying obtain drugs by scamming the medical system.






Court hears pain doctor's appeal



WILLIAMSBURG, Va. The lawyer for a northern Virginia doctor who prescribed massive doses of painkillers says the trial judge made a mistake in jury instructions.

A three-judge panel of the 4th U-S Circuit Court of Appeals met at the College of William and Mary today and heard arguments in the case of William Hurwitz. A ruling is expected in a few weeks.

Hurwitz ran a pain clinic that attracted patients from more than 39 states. He was convicted in 2004 of conspiracy and drug trafficking resulting in a patient's death, and was sentenced to 25 years in prison.

Prosecutors say Hurwitz frequently prescribed 100 tablets or more of OxyContin for patients -- many of them obvious drug addicts and dealers.

Hurwitz's attorney, Lawrence Robbins, said the jury should have been told it could consider whether a doctor acted in good faith in prescribing the huge doses of painkillers.

But federal prosecutor Richard Cooke argued that good faith did not fit Hurwitz's case because the doctor knew he was prescribing to addicts and dealers.





Appeal Brief of Dr. Hurwitz
September 2005
Pdf file








Doctor gets 25 years for drug trafficking



4/14/05 ALEXANDRIA, Va. - A prominent doctor convicted of using his pain clinic as a front for drug trafficking and flouting medical conventions by prescribing massive amounts of opiates to patients was sentenced to 25 years in prison Thursday.

Dr. William E. Hurwitz, 59, whose pain clinic in McLean drew patients from more than 39 states, was convicted in December on 50 counts, including drug trafficking resulting in the death of a patient, health care fraud and illegal drug distribution.

About 100 of Hurwitz's supporters packed the federal courtroom in Alexandria, and several testified that Hurwitz saved them from debilitating pain that other doctors were unwilling to treat.

"I was sick as a dog. I was 90 pounds soaking wet, and I wanted to die. If not for that man, I would be dead" said Eyssel Gurganus of Goldsboro, N.C., pointing to Hurwitz. "I had been to 36 doctors, and every doctor is afraid of prosecution."

Many of Hurwitz's supporters warned that his lengthy prison sentence would deter other doctors from prescribing needed medicine to those in pain. But prosecutors and U.S. District Judge Leonard Wexler, who imposed the 25-year sentence, said Hurwitz's conduct was so egregious that no legitimate doctor should be concerned about a precedent.

Hurwitz's lawyer Marvin Miller said the fact that Hurwitz tried to treat the patient for poison oak is evidence that Hurwitz was naive and was manipulated by drug-seeking patients.

Hurwitz, a graduate of Stanford Medical School, is "academically brilliant, but he's got no street smarts," Miller said. Hurwitz's ex-wife, Nilse Quercia, testified that "one of my husband's weaknesses is that he is too trusting."

Hurwitz twice had his medical license suspended, once in 1991 and again in 1996. The second time, he was required to attend classes to learn how to detect drug-seeking patients who wanted to abuse the medical system. The doctor who taught that class testified at trial that Hurwitz was one of his best students.

Wexler, in imposing his sentence, said Hurwitz had numerous opportunities to reform his practices but chose not to.

"Dr. Hurwitz, I do not feel sorry for you. You were one of the chosen people. You had the talent. You went to the best schools. You made money. You were successful," Wexler said. "By your behavior you ruined people's lives. By your behavior, you killed people."

Federal law required that Wexler impose at least 20 years, though Miller argued unsuccessfully that the statutory minimums did not apply in Hurwitz's case. Wexler said he felt compelled to hand down more than the 20-year minimum, though he declined to impose the life sentence sought by prosecutors.

Hurwitz, appearing in court in a green jail jumpsuit, did not speak during the sentencing; he blew a kiss to family members as he was led away after the hearing.

He is appealing the conviction.





hurwphoto


Dr. William Hurwitz, MD


Register Number 47038-083
Unit B2
FCI Cumberland
Federal Correctional Institution
P.O. Box 1000
Cumberland, Maryland 21501






Billy Is Guilty Of One Thing:
BELIEVING AUTHORITIES



Group,
I received this email privately so I removed personal identifiers in order to share it with the list. My comments follow.
Dr. A.


Dear Dr A,

For over a yr. we took my son to Dr Hurwitz for easing his intractable pain. It was the first time in 18 years my husband said "That Doctor in Washington is really helping." We all noticed the improvement, not moaning, sleeping outside on scooter, etc.

Our family is shocked about this unrightest judgment against Dr Hurwitz. It's hard to believe this could have happen, the screening to become a patient Dr Hurwitz - the required 'Drs referral" form...etc.

We are outraged at all the damage a few caused - on Dr Hurwits and the patients in dire need of his care. No way this judgment should have fell on him.

The first week at Dr Hurwitz we were concerned about the amount of medication given our son. Dr Hurwitz told us "that's not a problem. Xxx's dose is very low than all my other patients. And the State of Virginia, the DEA and the Medical Board are in close watch over everything I prescribe. We have a agreement which they all know the prescriptions and amounts that are prescribed."

We All Wish Dr. Hurwitz and Family + Victory !

signed,
XXX family


Read the last paragraph carefully. This family is confirming my direct memory of conversations with Billy in those years, which I have written about before. It speaks directly to Billy's intent.

Bill Hurwitz thought he had an 'understanding' with the authorities, he thought, not only was he being totally above board about what he was doing, and apparently told lots of people like me and these people, but he also thought that the authorities were responsibly monitoring his practice as per agreement in a sort of defacto partnership. I think Billy saw his work in part as a demonstration project - an operalization of what the Pain societies and ASAM taught in the 90's (and still do) - a sort of supervised, real life, proof-of-concept study of outpatient chronic opioid therapy. Anyway, Billy's openness and willingness to work with state and fed regulators towards the manifestation of better pain practice in this country didn't work out too well.

Well, as I have also previously written, his openness with authorities always gave me the willies and I told him so. Guess I was right, huh? His federal law enforcement "partners" stabbed him in the back, simply and without apology. And the VA state med board just dummied up (real class outfit, apparently - it's boards like you'all that give physicians a bad name; you are cowards).

I am being cynical about Billy's heart; it's an emotional defense. It is his openness, his "hey kids, let's put on a show!" enthusiasm, his pure strain of medical values (we can relieve this suffering so we must), and his raw guts -- these are the qualities that attracted me to Bill, are the qualities I wish I had more of, are what I love and respect about him. But let's face it comrades, right now these are qualities that'll land you in jail in our calling.

Personally, I've seen enough doc-cop 'trust and partnership' for several lifetimes. Would all you nice policemen just go away so clinicians and public health geniuses and legal-types-of-good-will could have some room to work on what would just be an emminently improvable public health problem without your 'contributions'?

Dr. A




Life-Sentence Before Sentencing?

By Ken Moore



March 30, 2005 - Dr. William E. Hurwitz, 59, will be sent to prison for life on April 14, even if U.S. District Judge Leonard D. Wexler doesn't give the McLean pain doctor a life sentence.

"He is facing 20 years to life. Even if I want to be a nice guy, I can't go under 20 years. With his age, that's a life sentence," Wexler said Wednesday, March 23, during a two-hour court hearing at U.S. District Court in Alexandria. More than 35 people who attended the hearing, mostly members of Hurwitz's family and supporters, gasped as Wexler made his comment.

Hurwitz's attorneys, Marvin Miller and Kenneth Wine, asked Wexler to release Hurwitz on bail, pending appeal, while his case is ultimately decided in higher courts.

"Anyone who listened to this trial … realizes it's a very complex and intricate legal case. This is not a typical drug case, this is not a typical drug dealer," Wine said. "This man's entire life has been devoted to helping people. … We ask [you] to grant bail pending appeal and to let Dr. Hurwitz go home."

U.S. Assistant Attorneys Eugene Rossi and Mark Lytle objected to Hurwitz's motion, referring to Linda Lalmond, a North Carolina resident who traveled to McLean after seeing Hurwitz featured on "60 Minutes." She died on the second day she was treated by Hurwitz.

"Linda Lalmond can not go home, she does not have that choice," Rossi said. "He should be detained."

Judges have discretion to release convicted defendants until their sentencing, Wexler said, if there is clear and convincing evidence that the person is not likely to flee or pose a danger to the community.

"I don't think he poses a danger to anyone," said Wexler, but the judge did call Hurwitz a flight risk because of the doctor's age and the sentence Wexler will be obligated to impose on Hurwitz in three weeks.

A jury convicted Hurwitz, who operated a high-profile practice treating patients with chronic pain from his McLean office, on 50 of 62 counts last December, including drug trafficking conspiracy and drug trafficking resulting in deaths and serious bodily injuries. The six-week trial included 76 witnesses — 63 for the prosecution — and more than 1,000 exhibits.

Hurwitz specialized in treating patients with severe, chronic pain with high doses of addictive opioid drugs including OxyContin.

Some of Hurwitz’s patients were illegally selling some of the hundreds of thousands of pills the doctor prescribed for them, and more than 15 of those drug dealers testified against Hurwitz at his trial. There was no evidence that Hurwitz profited from the illegal sales of drugs.

Wine and Miller maintain that Hurwitz practiced in "good faith" and they believe there are a number of issues that could be reversed in the appeal process.

"It is beyond comprehension how a doctor without criminal intent … acting in good faith belief that he or she is fulfilling a legitimate medical need, can be convicted of a crime," Wine said.





DRCNet Letter to Judge Wexler
on Upcoming Sentencing Hearing 3/25/05



3/22/05
The Honorable Judge Leonard D. Wexler
United States District Court
Eastern District of Virginia, Alexandria Division
401 Courthouse Square
Alexandria, VA 22314
Re: United States v. William Eliot Hurwitz, 03-CR-467-ALL (LDW)


Dear Judge Wexler:


I am writing to express concern about comments made by Ralph Craft, foreman of the Hurwitz case jury, which appeared in the December 21, 2004 edition of The Washington Post. Mr. Craft's remarks indicate the jurors fundamentally misconstrued both the legal and medical issues involved in the case. I have observed the pain issue and worked with pain patients, physicians and their advocates for ten years and am well versed in the issue.

Mr. Craft told the Post, "the legitimate doctors out there don't prescribe anywhere close to what Hurwitz did." However, the dosage which according to the Post "astounded" Craft, 1,600 5 mg oxycodone pills, adds up to 8 grams daily, of a medication equivalent in its potency to morphine. According to Dr. Russell Portenoy, Chairman of the Department of Pain Medicine and Palliative Care at Beth Israel Medical Center, "[i]n clinical practice, the range of opioid doses required by patients is enormous" and "[d]oses equivalent to more than 35 g morphine per day have been reported in highly tolerant patients..." (1) The 35 grams Dr. Portenoy, one of the world's leading pain specialists, finds appropriate in some cases, is more than 4 times the dosage Mr. Craft and presumably other jurors believed was impossibly large -- a serious misconception that appears to have played a major role in the convictions.

Mr. Craft also told the Post that Dr. Hurwitz "wasn't running a criminal enterprise." However, the charges of which he and other jurors voted to convict Dr. Hurwitz are clearly intended to apply to persons involved in major criminal enterprises. That Mr. Craft and perhaps other jurors could understand that Dr. Hurwitz did not run a criminal enterprise, and yet convict him for running a criminal enterprise, suggests they were either unable, unwilling, or inadequately prepared to properly interpret the charges on which they were deciding.

Given the multiple, fundamental errors made by jurors, I believe your legal and moral obligation is to reverse the convictions and release Dr. Hurwitz immediately. Short of that, I urge you at least to use the discretion afforded by the recent Booker/Fan Fan Supreme Court ruling to sentence reasonably, and sentence Dr. Hurwitz to time served when he appears before you next month. Since the jurors themselves did not believe Dr. Hurwitz ran a criminal enterprise, it would be unreasonable to hand down a sentence Congress intended for leaders of criminal enterprises.

Thank you for taking my points into consideration. I will be attending the April 14 sentencing hearing in support of Dr. Hurwitz, pain patients, and all enlightened physicians who wish to treat them. I believe this is a matter of the utmost moral gravity and that history will watch and remember the actions you take that day.

Respectfully,

David Borden
Executive Director





Judge denies bail for Va. doctor


Mar 24, 2005 ALEXANDRIA --A prominent Northern Virginia doctor convicted of fueling a black market in potent prescriptions drugs will remain in jail pending his formal sentencing and an expected appeal of his convictions.

U.S. District Judge Leonard D. Wexler yesterday refused to grant bail to Dr. William E. Hurwitz, who in December was convicted of 50 charges stemming from a three-year federal investigation into the illegal distribution of medications -- primarily OxyContin, a widely abused and highly addictive painkiller. The investigation resulted in convictions on drug-trafficking charges, authorities said.

Wexler, who had allowed Hurwitz to remain free on $2 million bond during his trial, said the 59-year-old Harvard graduate now represents a substantial flight risk because he faces a minimum prison term of 20 years.

"For this defendant, given his age, I find this is a risk of flight. No bail," Wexler said.

Wexler also refused to grant Hurwitz a new trial. April 14 was set for a sentencing hearing during which prosecutors will seek a life prison term. Defense lawyers have said they will appeal the convictions.

Hurwitz, who graduated from the Stanford University medical school and holds a law degree from George Mason University, earned a reputation as an unconventional doctor who advocated massive doses of potent drugs to help patients combat chronic pain. He once was profiled on the CBS News show "60 Minutes."

But he closed his practice in McLean in 2002 once he became the focus of federal investigators, the latest in a string of disputes with regulators. He earlier had been disciplined by medical boards in Virginia and the District of Columbia for improperly treating pain patients.

During his trial, Hurwitz testified that he prescribed massive amounts of painkillers to some patients but insisted he always did so for sound medical reasons. He has denounced his prosecution as a "political trial" by federal agencies that are targeting doctors instead of drug dealers and abusers.

His supporters -- about 30 of whom attended yesterday's hearing and cried out "bye, Billy" as he was led from the courtroom -- describe him as a compassionate doctor who helped hundreds of patients ease unrelenting pain. He is a former Peace Corps volunteer and once worked for the federal Veterans' Administration.

But prosecutors, while acknowledging that Hurwitz helped many legitimate patients, said he also recklessly prescribed thousands of pills to known drug abusers.

"The government proved the defendant was a pill-mill," said Assistant U.S. Attorney Mark D. Lytle. "He prescribed outrageous amounts of drugs to drug addicts."





Life Sentence Sought for
Pain Doctor William Hurwitz

3/9/2005 - Federal prosecutors urged a judge yesterday to send William E. Hurwitz to prison for life, saying the prominent former pain doctor repeatedly lied on the stand during his narcotics-trafficking trial last year.

In a memo filed in U.S. District Court in Alexandria, prosecutors said Hurwitz's "criminal behavior was simply disgraceful" and "blatantly violated his Hippocratic oath" to help patients. Hurwitz was convicted of running a drug conspiracy out of his McLean office and trafficking in narcotics that caused the death of one patient and seriously injured two others. He is scheduled to be sentenced April 14.

Hurwitz's attorney, Marvin D. Miller, called the government request for a life sentence "absolutely insane and way beyond the realm of rationality." Portraying Hurwitz as a caring doctor who wanted only to help his patients, Miller said, "This is obscene."

Miller said U.S. District Judge Leonard D. Wexler should give Hurwitz a sentence of less than 25 years in prison.

The contrasting views of Hurwitz set up what promises to be an explosive sentencing hearing in a case that already has generated a lot of heat. As cancer patients and others in chronic pain became increasingly vocal about access to treatment, Hurwitz became a symbol in a nationwide debate. Advocates for patients with chronic pain portrayed him as a licensed doctor prescribing legal drugs to patients in dire need with nowhere else to turn; prosecutors said he took advantage of that hope.

Adding to the uncertainty about Hurwitz's sentence, a recent U.S. Supreme Court decision made "advisory" federal guidelines that had been mandatory for judges. Hurwitz's is one of the first major cases to come up for sentencing in federal court in Alexandria since that decision.

The government accused Hurwitz of prescribing excessive amounts of dangerous drugs -- in one instance 1,600 pills a day -- to addicts and others, some of whom then sold the medication on a lucrative black market.

The case capped a three-year investigation, part of a broader federal crackdown, into doctors, pharmacists and patients suspected of selling potent narcotics and fueling an epidemic that ravaged Appalachia. Nationally, most other convicted pain-management doctors have received sentences much shorter than the one recommended in this case, law enforcement officials said yesterday, though one doctor convicted in Florida last year was sent to prison for life.

A federal jury in December convicted Hurwitz of 50 counts of the 62-count indictment, including conspiracy to distribute controlled substances. Jurors acquitted him of nine counts and deadlocked on three.

Patient advocates have portrayed Hurwitz as a heroic figure who helped patients nobody else would treat. Advocates reacted with shock to the government's call for a life sentence.

"That's really something. That's unbelievable," said Russell Portenoy, chairman of pain medicine at Beth Israel Medical Center in New York. "Such an extreme sentence sends the message to the medical community that the government will continue to go after doctors."

The government memo lays out numerous examples of lies that allegedly were told by Hurwitz when he testified and that prosecutors cite in calling for a tougher sentence. In one example, the memo says, Hurwitz lied when he blamed the prescription of 1,600 pills a day to one patient on a "clerical error."

Prosecutors quoted from letters sent to the judge by relatives of Hurwitz's victims. One was from Mary Meyer, mother of Linda Lalmond, who died of a drug overdose in Fairfax County in 2000 shortly after meeting Hurwitz. She wrote that her daughter "left home hopeful and smiling, had 2 visits with Dr. Hurwitz and was returned home in a container."

"I request that Dr. Hurwitz be sentenced to the fullest extent of the law," Meyer wrote.





Bribery and Corruption at Billy's trial



7 Feb 2005

To All:

Some of you may already know of this, but I felt a particular outrage when I heard of it from Billy.

We all know that witnesses are induced to testify by the prosecution in exchange for leniency. Such amounts to a bribe, not for dollars, but for days of freedom. But that's the system, and the prosecutors will say without it, there would be only a fraction of the convictions they now achieve. They of course imply that the bargain is leniency in exchange for truthful testimony, which a bad guy would otherwise have no incentive to give, and to get information that could be obtained in no other way. I'm sure they would stoutly deny they would "pay off" the snitch according to how satisfied they were with what he had to say.

At Billy's trial, you will recall that one of the 50 or so witnesses actually spoke favorably of Billy. This man testified, like the others, that he had deceived Billy, but also he thought Billy cared about him and all his other patients. He made it clear that his success in getting prescriptions was based on deception, not collusion. This man was one of the very first witnesses to testify, on the first day of the trial. None of the witnesses who followed had anything good to say about Billy.

Now Billy tells me that all but two of the witnesses were released from jail shortly after the trial. THIS WITNESS WAS ONE WHO WASN'T! In fact, he has to do FIVE MORE YEARS IN JAIL.

This is blatant. It does not take a rocket scientist to connect the dots here. After this initial witness infuriated prosecutor Rossi by indicating that Billy was a decent human, all of the other witnesses got a quick little talking to about what they "better not say", which indeed they took that warning to heart. (as I'm sure the first one now wished he could go back and do!)

The information Billy gave me needs to be confirmed by whatever means possible, then publicized to high Heaven! The Washington Post needs to hear it. CBS Sixty-minutes needs to hear it. And the legislators that Siobhan et al talk to need to hear it. If the above is accurate, the justice department has sunk to a new low, just short of what happened in the Stalin show trials in 1937.

This is perversion of justice in the worst sort of way, and, I hope, maybe one step too far by the drug police. It is one thing to buy someone's testimony in exchange for their freedom (a dubious but perhaps unavoidable reality.) It's quite another to penalize the witness for giving an answer under oath that embarasses the prosecutor, even though no one could dispute the truth of his answer. And then to make it clear to subsequent witnesses what defines "truthful testimony" that they must give - if they want to walk.


Name withheld for protection purposes




Facts Learned Since
The 'Guilty' Verdict


  • It was reported in the Washington Post: "Court testimony indicated at least one patient received a prescription for 1,600 pills a day." This was shown in court to be a clerical error that never got past the pharmacist. The nurse multiplied by the wrong multiplier. The Post reporter was asked to clarify the 1600 pill detail in his report. He said he felt that because he put it in quotes and was careful to note that the government had asserted it, that this put it in context. So 1600 pills a day" was a clerical error, that the judge allowed left in.
  • The number of good patients that can be presented is determined by the judge. Dr. Hurwitz' defense was grudgingly allowed 5 patients. The prosecution put on a total of 63 witnesses.
  • Signed by 6 past presidents of the American Pain Society, the letter BELOW lists many misrepresentations by the government's key witness Dr. Michael Ashburn. In fact, this letter was presented to Judge Wexler BEFORE the end of trial. Why wasn't it given to the jury??

    Also available PDF

    December 10, 2004

    Marvin D. Miller, Esq.
    P.O.Box 663
    1203 Duke Street
    Alexandria, VA 22313

    Dear Mr. Miller,


    We are Past Presidents of the American Pain Society and have decided to take an unusual step in writing you about the expert testimony that you have heard at the trial of Dr William Hurwitz. We are deeply concerned that serious misrepresentations in the testimony provided by the government¹s expert, Dr. Michael Ashburn, will undermine the welfare of patients who suffer in chronic pain.

    Our concern is that the role of key government expert will lend credibility to Dr. Ashburn¹s statements about the treatment of chronic pain, many of which we believe to be factually wrong or serious misstatements of consensus in the field. The credibility accorded this testimony, when disseminated or used to justify future investigations, threatens the public good. We felt morally compelled to inform you of our profound concern.

    There are several points of sharp disagreement:

    • Dr. Ashburn repeatedly stated that the use of ³high dose² opioid therapy is an indication of drug abuse in populations with chronic non-cancer pain. It is factually untrue that this is a consensus opinion of pain experts. We strongly hold the view that patients with non-cancer pain may benefit from opioid therapy and that the dose necessary to control pain may be high. Use of ³high dose² opioid therapy for chronic pain is clearly in the scope of medicine.
    • Dr. Ashburn asserts (page 23 of the transcript) that morphine at a dose of 195 mg/day constitutes a high dose. This statement is without foundation in the medical literature and we believe that it is, on its face, absurd.
    • Dr. Ashburn implies that opioid treatment of a patient with a known addiction is medically wrong and worsens the addiction. This is not the view of experienced clinicians in the field. It is unacceptable to promulgate the view that the disease of addiction automatically denies patients with severe pain the possibility of relief through careful opioid therapy.
    • He states (page 37) that high dose opioids produce hyperalgesia (increased pain) and therefore may worsen the clinical pain problem. Although this has been raised in the literature as a theoretical concern affecting some patients, neither the prevalence nor the clinical significance has been established and its putative risks have not led to any change in clinical guidelines.
    • Dr. Ashburn speculates (page 37) that high dose opioids may compromise the immune system. Again, this is considered to be a theoretical risk, one balanced by the potential dysimmune effects of unrelieved pain itself; it has not found its way into any accepted guideline for opioid use in any population.
    • In the past, each of us perceived Dr. Ashburn as a respected colleague and his selection as an expert by the government as understandable. We are stunned by his testimony. As leaders in this field, we feel compelled to correct the errors in his testimony, lest it be used in the future in a manner that worsens the national tragedy of untreated pain. We will try to correct the public record after the trial concludes and sincerely hope that the government and the court will consider this information now.

    Respectfully submitted,

    Russell K. Portenoy MD
    Chairman
    Department of Pain Medicine and Palliate Care
    Beth Israel Medical Center
    New York, New York

    Professor of Neurology and Anesthesiology
    Albert Einstein College of Medicine
    Bronx, New York

    Chief Medical Officer
    Continuum Hospice Care/The Jacob Perlow Hospice
    New York, New York

    James N. Campbell, M.D.
    Director, Blaustein Pain Treatment Center
    Johns Hopkins University Medical Center

    Kathleen Foley, M.D.
    Pain and Palliative Care Services
    Memorial Sloan-Kettering Cancer Center

    Charles Cleeland, Ph.D
    Director, Pain Research Group
    U.T.M.D. Anderson Cancer Center

    Christine Miaskowski, R.N. Ph.D. FAAN
    Professor and Chair, Department of Nursing
    University of CA San Francisco

    Richard Payne, M.D.
    Director, Duke University on Care at the End of Life
    Duke University Divinity School






WHAT DOES IT ALL MEAN?


What is at stake in the Hurwitz case is nothing short of the complete breakdown of the physician-patient relationship. That is because the Hurwitz prosecution establishes, as a matter of law, that the DEA has the power to impose the legal view that no physician can take any form of legal security in trusting his patients. In other words, the government -- merely by bringing this prosecution -- has established a legal standard that makes such trust, in and of itself, actionable in criminal law! The lesson from the Hurwitz prosecution to pain physicians is that it is too dangerous for any physician to trust his patient -- that a larger and much more intrusive and paternalistic role is required of the physician -- if for no other reason than just to avoid criminal prosecution. As a corollary, no patient should ever expect to find a pain physician in America following the Hurwitz prosecution that operates with any measure of trust for his patients -- outside of this newly required, intrusive and paternalistic approach to "care" demanded by the DEA through its prosecutorial policies.

This prosecution of Dr. Hurwitz will forever change the nature of the medical treatment that chronic pain patients will receive in America. The lack of trust demanded by the DEA in this case demonstrates that physicians must require of all of their patients from here foreward, at a minimum:

  • paternalistic, intrusive, unending pill counts [with high intolerance for any reason for miscount];
  • random and constant drug screenings;
  • overuse of psychiatric and "addictive medicine" defense strategies against pain patients;
  • increase in the overall costs of care through exaggerated demands for diagnostic information, and disallowance of any nonobjective claim of pain;
  • increase in the overall costs of routine pain treatment through repeated, in-person physician visits for all medication refills;
  • intrusive and arbitrary limitations on medication refills, regardless of actual pain level or medical necessity;
  • stereotypical and morally judgmental imposed categories of "patient worthiness" in determining who to treat, paying particular attention to socioeconomic history, reputation for trustworthiness by third parties, or any history of prior substance abuse or psychiatric illness.

Of Course, a natural fallout of this will be a heightened tendency by physicians to distrust (and undertreat) patients in pain, as well as a reduced tendency by physicians to take on patients with complicated or unusual care needs -- including specifically patients with severe, intractable, nonmalignant chronic pain.

In sum, the Hurwitz prosecution will have a deleterious effect on pain treatment throughout the entire nation. The United States Government should hang its head in shame for having deliberately caused this result.

Laura Cooper Fenimore, Esq.
Pain Wars
http://www.painwars.org/






Discredited Convictions and the Rule of Law
by David Borden



12/24/04 - The war of words between physician organizations and the federal drug bureaucracy -- and their physician henchmen -- over pain control has continued to escalate.

Just prior to the trial's ending, a letter was sent to Dr. Hurwitz's attorney, intended to be shared with the judge and if possible the jury, by six past presidents of the American Pain Society, blasting the testimony of Dr. Michael Ashburn -- another past APS president whom the prosecution had hired to help make their case. The presidents cited "factually wrong or serious misstatements of consensus in the field" by Dr. Ashburn, and wrote that while they had previously regarded him as a "respected colleague," they were "stunned" by his testimony and felt "morally compelled" to speak up [http://stopthedrugwar.org/breakingnews/index.shtml#painpresidents].

A week ago, Jacob Sullum of Reason magazine commented, "I have to admit I'm impressed by the achievement of the federal prosecutors who call McLean, Virginia, pain doctor William Hurwitz 'a major and deadly drug dealer.' Although the evidence they presented in his trial made it clear Hurwitz was not a drug trafficker, they still managed to convict him of drug trafficking" [http://www.reason.com/sullum/121704.shtml].

Comments given to the Washington Post by jury foreman Ralph Craft, published there on Tuesday [http://www.washingtonpost.com/wp-dyn/articles/A15167-2004Dec20.html], show that Sullum hit the nail on the head, but also that there are two nails. Craft's quotes prove beyond a reasonable doubt that the jurors fundamentally misconstrued both their legal obligations as jurors and the medical evidence on pain control, and may complete the discrediting of the Hurwitz convictions that has proceeded so rapidly already.

Craft told the Post, "The dosages were just astounding," citing testimony that Hurwitz had 1,600 pills per day to one of his patients. "Certainly, the legitimate doctors out there don't prescribe anywhere close to what Hurwitz did," he continued, reasoning that the convictions of Dr. Hurwitz would therefore not affect how legitimate physicians deal with pain treatment. To Craft, the number of pills reflected a "cavalier attitude" that led to the deaths of some of Hurwitz's patients.

The problem is, according to top experts on pain control -- including one who testified at the trial -- Craft is completely wrong. According to Frank Fisher, a physician who served as a consultant to the Hurwitz defense team and who survived his own bout with the drug police;

"1600 5 mg oxycodone pills per day, if this had been prescribed, would have been only 8 grams of morphine per day," whereas "there are accounts in the literature of patients taking as much as 35 grams per day" -- more than four times as much.

Any competent clinician could have told Craft that the number of pills is irrelevant. The relevant quantity is the amount of the opiate -- e.g. the number of pills multiplied by the amount of morphine each pill contains, varies widely between different types of medications. Fisher sent me a quote from a textbook chapter written by Russell Portenoy, chairman of the Department of Pain Medicine and Palliative Care at Beth Israel Medical Center. It's technical, but it says it:

"Once an opioid and route of administration are selected, the dose should be increased until adequate analgesia occurs or intolerable and unmanageable side effects supervene. There is no ceiling effect to the analgesia provided by the pure agonist opioid drugs and the maximal dose is immaterial as long as the patient attains a favorable balance between analgesia and side effects. This implies that the opioid responsiveness of a specific pain can only be ascertained by dose escalation to limiting side effects. In clinical practice, the range of opioid doses required by patients is enormous. Doses equivalent to more than 35 g morphine per day have been reported in highly tolerant patients with refractory cancer pain."

So there have been legitimate prescriptions recorded for more than four times the dosage as the largest ones brought up at the Hurwitz trial. But despite having one of the leaders in the pain control field, Russell Portenoy, present to tell them that in person, Craft just wasn't willing to believe that it could be true. In fairness, the prosecution had provided them with another doctor -- Ashburn -- who was willing to tell them what they apparently wanted to hear. But when faced with one expert who says "innocent" and the other "guilty," at worst is it not a situation of reasonable doubt?

The legal issue may be even more troubling. Consistent with Sullum's observation, Craft actually seems to have understood that Hurwitz was not a drug trafficker. "No, he wasn't running a criminal enterprise," he told the Post. Good that Craft recognized this -- I guess -- but why then did he and the other jurors vote to convict Dr. Hurwitz of drug trafficking -- a criminal enterprise?

In the end, though, as much as part of me wants to blame the jurors -- for the arrogance of thinking they understand pain control better than the world's top experts in pain control, for the illogicalness of convicting a man for conduct in which they recognize he did not engage -- ultimately I believe the blame lies elsewhere. The jurors screwed up, no doubt, about as badly as they could have. But they never should have been placed in that position in the first place.

The mistakes the jurors made are human kinds of mistakes. They are not doctors or lawyers, who are trained in medicine and logic and scientific thought. They are ordinary people. They relied on the expectation -- had a right to expect -- that the government would provide them with a clear and realistic understanding of both the facts of the case and the principles of the law -- the truth, the whole truth, and nothing but the truth. That's NOT what they got. As a result, they were vulnerable to the prosecutors' tricks, the playing up of the irrelevant but seemingly shocking number of pills, the muddying of the legal issues by calling Hurwitz a drug dealer over and over despite presenting no evidence of it.

It is a testament to the weakness of the fibers that bind our nation to the principle of rule of law. Federal agencies are free to overstep their legitimate boundaries, in this case by intruding into the realm of medicine -- a matter for civil society to regulate if there ever was one, certainly not a matter for drug war police. It then gets tested in trial, at enormous personal and financial cost to the victims so targeted. The case is then decided by a group of 12 citizens who are probably well meaning, but who don't for the most part possess the degree of knowledge and finely-tuned reasoning skills to counteract the vivid portrayals of professional prosecutors and their hand-picked witnesses. Unfortunately, there is currently no mechanism existing in our legal system to guard against inappropriate use of prosecutorial powers in advance -- and once the process starts, just outcomes cannot be expected with any reliability.

The Hurwitz trial and the comments of the jurors in its aftermath cry out for a separation of prescription opioid treatment from the area of criminal law, at least on the first level. If there is a role for the criminal law, it should first be doctors who go to the government when they are convinced true criminal malfeasance has occurred, not the other way around. This is not a legalistic or academic issue. A man is facing life in prison for fully living up to his medical obligation to treat patients for their pain; and patients around the country and living with the torture of untreated or under-treated severe chronic pain, many being driven to the horror of suicide. Because federal prosecutors do not respect the rule of law.

It's time for Judge Wexler to undo his mistakes that contributed to this travesty. He could begin to do so immediately, by restoring Dr. Hurwitz's bail and allowing him to remain free pending appeal. He's not going to prescribe opioids again, after all, his license was revoked. And Craft's comments to the Post may give Wexler grounds to reverse the verdict itself. It would be an unusual step, but it is a power that judges possess for a reason. When it is demonstrated that a jury simply did not understand the legal issues or its obligations under the law, that's a very good reason. And the indirect impact of the verdict on pain patients everywhere is another. It's time for a judge to show reason and courage.





He Would Not Torture

An Editorial by David Borden Executive Director Drug War Chronicle


12/17/2004 - 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 Sixty Minutes when they 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 whom 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 wait years in prison awaiting his appeal, nor to 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 why may at least be some small source of comfort and large source of pride: He would not torture.





Dr. Hurwitz Convicted on 50 Counts
Faces Life in Prison



hurwphoto

DR. WM. HURWITZ DEC/2004

Prominent Northern Virginia pain management specialist Dr. William Hurwitz was viewed as a savior by his patients, some of whom traveled hundreds of miles to see him, but a federal jury in Alexandria, Virginia, yesterday found him guilty of being a drug dealer. After six weeks of testimony and four days of deliberations, the jury convicted Dr. Hurwitz on 50 counts of a 62-count indictment, acquitted him on nine others, and was unable to reach a verdict on the remaining three counts.

On the orders of presiding Judge Leonard Wexler, the nationally known pain treatment pioneer was immediately hustled off to jail. In the best case -- assuming the verdicts will be overturned on appeal -- Dr. Hurwitz will probably spend between two and three years behind bars. In the worst case, he will die in prison as a convicted drug dealer.

Testimony showed that Dr. Hurwitz had prescribed huge amounts of opioid pain relievers to his patients, some of whom diverted some of them to the black market. But expert defense witnesses testified that while Dr. Hurwitz's prescriptions might appear outlandish to medical novices, in reality they were in line with accepted medical practice in opioid pain treatment.

The case has focused national attention on the increasingly heated dispute between federal law enforcers and pain care advocates over whether aggressive opioid pain treatment is good medicine or criminal drug-dealing. In recent years, dozens of doctors across the country have been subjected to criminal trials for prescribing pain pills, while hundreds more have been taken before state medical boards. The contradiction between the imperatives of pain management and those of drug law enforcement has only heightened this year, as the Drug Enforcement Administration (DEA) and the federal drug czar, John Walters, unleashed a campaign against prescription drug diversion and abuse.

Hurwitz patients and pain treatment advocates attended the trial and reacted to the verdict with anger and disappointment. "I just feel very sad, very bad for Billy and the Hurwitz family," said Siobhan Reynolds, director of the Pain Relief Network (http://www.painreliefnetwork.org), a leading advocacy group for pain patients and doctors. "It is really frightening to see this whole federal drug apparatus go into high gear to destroy that which it has targeted. To watch what is really a cynical political prosecution being carried out in what used to be our hallowed courts is really distressing," she told DRCNet.

"We are so far away from our original ideals. We are letting federal law enforcement regulate medicine through the criminal courts and allowing the opinions of prosecutors to override the medical judgments of highly trained physicians. If this doesn't serve as a wake-up call, then I don't know what does."

Unsurprisingly, US Attorney Paul McNulty, whose office prosecuted the case, had a different take. "This sends a major message to anyone who would use the treatment of pain as a cover for being a drug trafficker," he told reporters after the verdicts were read.

Reynolds agreed that the verdict sent a strong message, but said that message was one that would result in people in chronic pain going untreated.

"Any doctor encountering a patient in pain will now run for the hills," she said. "We are already hearing reports of doctors saying they will be more punitive with patients who make them nervous. This is a public health disaster. Twenty years ago, many doctors were afraid to treat patients with AIDS, and the government took steps to ease that fear. In this case, we have the same sort of public health catastrophe, but instead of helping the problem, the government is only exacerbating it."

"No doctor in his right mind would prescribe for chronic pain patients now, knowing that their misuse of the drugs could be tied back to the doctor and he could be accused of being a drug dealer," said attorney Ken Wine, part of Dr. Hurwitz' defense team. "It is as if each prescription he writes is like heroin being sold on the street. There is no middle ground in the law: Either the prescribing is okay or you might as well be selling crack on the street. The only defense doctors traditionally have is the good faith defense, but that did not work here," he told DRCNet.

Much of the most damaging testimony against Dr. Hurwitz came from a group of related patients from Manassas who had been arrested on drug charges and who worked with prosecutors in the effort to win a conviction. Those patients test ified that they duped Hurwitz into prescribing large amounts of opioids, then sold them on the black market. While they did not testify that Dr. Hurwitz was a knowing conspirator in their drug trafficking, their cumulative testimony aided prosecutors in portraying him as a doctor who ignored signs of drug abuse among his patients.

If those patients were Dr. Hurwitz' downfall, other patients testified fervently that the physician was the only one who would help them with their chronic pain. They testified that Dr. Hurwitz was a caring and courageous physician who was willing to prescribe what it took to treat them.

But jurors were more interested in the patients who took advantage of Dr. Hurwitz than those he helped. In their first question to the judge after they began deliberations, the jurors asked whether it was illegal to prescribe opioids to people who use illicit drugs. While the answer to that question is yes -- patients with substance abuse problems can be treated for their addiction at the same time they are being treated for pain -- Judge Wexler refused to instruct the jury thus.

"There will be an appeal, and it will be on the jury instructions," said Wine. "The judge basically refused to allow the good faith defense. Under the law, if he practiced medicine with good intentions, the jury could not find him guilty. But the judge limited the jury instructions so severely that it had little choice but to come back with a guilty verdict."

Now, Dr. Hurwitz is a federal prisoner, and more prosecutions of pain management doctors are already in the pipeline. In the battle between the imperatives of the drug war and those of medicine, the drug warriors have prevailed for now. But as Wine noted, "This is just one battle; the war is far from over."

For the Pain Relief Network, the Hurwitz verdict has prompted a call for an immediate moratorium on DEA prosecutions of physicians and a public examination of the Controlled Substances Act.

"This is the 21st Century. The Department of Justice is imposing its antiquated notions about opioid pain medicines on the American people. Millions of innocent sick people are suffering horribly," said Reynolds. "This simply has to end."





Va. Doctor Guilty of Drug Trafficking


Wed, Dec. 15, 2004 ALEXANDRIA, Va. - A pain-management doctor who frequently prescribed high doses of opiates to patients across the country was convicted Wednesday of drug trafficking in the fatal overdose of one patient.

A federal jury also convicted William E. Hurwitz, 59, of conspiracy and drug distribution charges while acquitting him of some other counts. Jurors remained undecided on still more charges and was to resume deliberations Thursday.

Three of 50 counts on which Hurwitz was found guilty - distributing drugs resulting in one fatal and two nonfatal overdoses - carry sentences of 20 years to life in prison, said Assistant U.S. Attorney Mark Lytle.

During the trial, Hurwitz testified he knew some of his patients were drug abusers who were illegally taking cocaine or abusing his prescriptions. He said he felt compelled to continue treating them with drugs like OxyContin because abruptly terminating their prescriptions would be "tantamount to torture."

Hurwitz frequently prescribed 100 tablets or more of OxyContin tablets for his patients as they developed tolerance to lesser doses. Court testimony indicated at least one patient received a prescription for 1,600 pills a day.

Hurwitz treated nearly 500 patients from 39 states from the late 1990s through 2002.

The jury acquitted Hurwitz on some charges: six counts of distributing a controlled substance, one count of engaging in a continuing criminal enterprise and two counts of scheming to defraud a health care benefits program.

It still must rule on a charge of distributing drugs leading to the death of another patient, one count of distributing drugs resulting in a nonfatal overdose and one count of distributing a controlled substance.





Fate of McLean Doctor up to Jury


December 14, 2004 - After hearing 21 days of testimony, 76 witnesses and exhibits from 31 notebooks containing thousands of pages of documents, an Alexandria jury of seven men and five women began deliberations last week in the trial of Dr. William E. Hurwitz, 59.

A By The Connection's Tuesday presstime, the jury had deliberated more than 23 hours to determine whether prescriptions Hurwitz wrote for chronic pain patients, some who turned out to be criminal drug dealers, some addicted to opioids including OxyContin, warrant locking the McLean 'pain doctor' in federal prison.

"I was engaged morning, noon and night in my practice. I bent over backwards in terms of being available to my patients as much as I possibly could have," Hurwitz said Monday, Dec. 13, as the jury deliberated over his fate. "I felt I was doing the best I could as a doctor to relieve pain."

Many past patients came to the United States District Court in Alexandria to offer support the last six weeks of his trial. “I know, in my mind, I did everything in good faith to help people,”

Hurwitz said. HURWITZ, WHO CLOSED his practice in December 2002, faces a 62-count indictment, including charges of conspiracy to traffic in controlled substances, drug trafficking resulting in death and serious bodily injury, illegal distributions, engaging in continuing criminal enterprise and health care fraud. Hurwitz’s trial is not the typical case involving someone charged with conspiracy to distribute drugs. The prosecution never claimed that Hurwitz directly profited from illicit drug sales.

His attorney Patrick Hallinan told the jury that Hurwitz's salary — $286,000 in 2001 and $317,000 in 2002 — was hardly extravagant for a Washington area physician, and small when compared to the amounts of money some former patients, now facing jail time, said they made selling the pills he prescribed.


Story continues here: http://tinyurl.com/623fn





Tue, 14 Dec 2004

Friends,

After 4 days of deliberations, the jury is still out. Today, they had only one question. They wanted to know if a wired up government agent can be part of a conspiracy. They can't.

The jury still appears stressed, but not as badly as they were yesterday.

Frank








Mon, 13 Dec 2004

Friends,

The jury is still out. They had two questions today.

In the morning, they requested transcripts from trial testimony from a toxicologist concerning one of the deaths. The also wanted to go over some of Ashburn’s testimony. The judge did not grant their requests, and it didn’t go any farther.

In the afternoon there was a question about one of the diverters, and his prescription. Before the attorneys could be assembled, a note was sent out stating that the question had been resolved.

Deliberations ended today at 4:30 PM. At the end of the day, jury members looked like they had been beating the Hell out of each other. I don’t know what it means, but that’s what happened.

Frank






Hurwitz Takes the Stand
Jury begins deliberations on the 62-count indictment against McLean ‘pain doctor.’

Thursday Dec 09, 2004

Some past patients say Dr. William E. Hurwitz saved their lives.

Before he found Hurwitz on the Internet, Sylvester Boyd testified Friday, Dec. 3 that he suffered 12 years with "constant, nagging, unrelenting pain — just pain, pain, pain — it nearly destroyed my life."

"I was at the end of my rope. It gets to a point where shockingly suicide is not an option you're willing to dismiss," testified Boyd, 50, who suffered bone fractures, muscle and cartilage tears in his back during a fall at an ice skating party he held for his daughter about 15 years ago.

Boyd was not the only grateful patient.

"Dr. Hurwitz saved my wife's life," said Charles Barnhart, of New Mexico, following his wife Molly Shaw's testimony last Thursday."I hope she got to the jury; I know every time she talks about it, it gets to me."


This "MUST READ" article continued here:

http://www.doctordeluca.com/Library/WOD/HurwitzTakesTheStand04.htm





Thursday Dec 09, 2004

Friends,

The jury is deliberating. So far, they have asked one question. They want to know if it is legal to prescribe opioids to a pain victim who is also addicted.

The defense proposed that the jury be instructed that this is legal as long a the physician prescribes opioids for the purpose of treating the pain. The government objected to this, and prevailed upon the judge to make an instruction that effectively obfuscates this simple issue.

If a conviction results, blame will accrue to a corrupt government working in collusion with the DEA. Between the FAQs debacle, Dr. Ashburn¹s testimony, and the sorts of judicial shenanigans described above, the effect of this trial will be to criminalize the treatment not only of addicts for pain, but also to criminalize the treatment of any patient who displays any aberrant drug-related behaviors.

Under these circumstances, it is hard to imagine how one might go about the practice of pain management without risking lifetime imprisonment.

Frank

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Thursday Dec 08, 2004

Friends,

Mr. Hallinan’s closing statement was a magnificent performance. He described how a sophisticated gang of predators took advantage of a well-intentioned pain doctor, and how the government conspired with them to help them take him down. The jury sat riveted at the edge of their seats. Mr. Hallinan owned the courtroom for almost an hour. This was one for the ages. I am still blown away by the force of it.

The US Attorney on the other hand, while conceding that Dr. Hurwitz had many legitimate patients, attempted to demonize him as the criminal mastermind of a drug dealing empire that stretched all across the southeastern United States, spreading misery and death as far as London, Kentucky. Mr. Rossi also accused Dr. Hurwitz as having taken delight in getting away with the killing of a number of his patients over the years, by outsmarting the DEA.

The jury will be charged tomorrow, and begin their deliberations.

Frank





Tuesday Dec 7th, 2004

Friends,

Most of today was taken up by an aggressive cross-examination of Dr. Hurwitz, by Gene Rossi. Dr. Hurwitz held his position well. It remained clear that his intentions were always to help his patients, and never to engage in any sort of criminal activity.

Drs. Hill and Stinson finished the day by testifying that all of the prescriptions found in the criminal charges were were reasonable, for a legitimate medical purpose, and well within the bounds of medical practice.

Cross-examination of these experts focused on the circumstances under which it would be criminal for a physician to issue a prescription for opioid analgesics. The government took the position that prescriptions should not be issued if there exists SUSPICION that they could be diverted. The consensus among defense experts was that a physician should not prescribe when he ABSOLUTELY knows that the drugs will be diverted. Clearly, there exists a conflict around a physicians responsibilities in regard to the notion of the principle of balance.

Closing arguments begin tomorrow at 12:30 PM.

Frank




Tuesday Dec 07, 2004

Va. Doctor Defends Prescribing Pain Pills


A prominent former pain doctor on trial for alleged drug trafficking defended his treatment methods yesterday, saying he prescribed large dosages of narcotics to patients who had been arrested or failed drug screenings because he believed they were in chronic pain.

In one instance, William E. Hurwitz testified, he refilled a Dilaudid prescription for a woman who said her dog had eaten the original one. "The issue of whether the excuse was believable or credible or truthful is hard to assess," said Hurwitz, who practiced in McLean until 2002. "I think it is possible that someone's dog may have mangled a prescription."


Article Continues Here:
http://www.washingtonpost.com/wp-dyn/articles/A41320-2004Dec6.html?sub=AR





12/6/2004

Pain doctor accused of drug trafficking
testifies in own defense

ALEXANDRIA, Va. - A prominent pain-management doctor accused of using his office as a front for drug trafficking acknowledged Monday that he prescribed massive amounts of opiates for some of his patients, but said he always had a medical reason for doing so.

William E. Hurwitz, accused in U.S. District Court of drug trafficking resulting in the deaths of two patients and other charges, took the stand in his own defense Monday.

Hurwitz testified that he knew some of his patients were drug abusers who were illegally taking cocaine or abusing his prescriptions. But he said he felt compelled to continue treating them with drugs like OxyContin--or at the very least to refrain from abruptly canceling their prescriptions--because of the withdrawal they would suffer after taking such high doses.

"Abrupt termination of these medicines is tantamount to torture," Hurwitz testified.

Hurwitz frequently prescribed 100 tablets or more of OxyContin tablets for his patients as they developed tolerance to lesser doses. Court testimony during the trial indicated that at least one patient received a prescription for 1,600 pills a day.

Hurwitz, who has had frequent run-ins with state medical boards, testified that the body quickly develops a tolerance for opiates such as morphine and OxyContin. The best way to combat that, Hurwitz said, is to rotate the drugs used and to increase the dosage when needed, often by doubling it.

He said the human body can tolerate massive amounts of opiates without physical damage and that the risk of addiction is overstated. He also said that the physiology of such drugs leaves a user with an increased sensitivity to pain if they are abruptly taken off a drug.

One of Hurwitz's patients, according to testimony, obtained an early refill of an OxyContin prescription by telling Hurwitz that the dog had eaten the initial prescription. Hurwitz had also seen what appeared to be track marks on the woman's arms, which she said she had received by hauling some wood.

Hurwitz said he didn't necessarily believe her excuses, but continued her treatment because "if the treatment was going to be terminated, it should be done in a tapered, rational way."

Some of Hurwitz's patients were using the prescriptions they received to deal drugs; many have struck plea bargains and testified against him at trial. Prosecutors have played audiotapes to the jury that they say are proof that Hurwitz knew these patients were dealing drugs and that he turned a blind eye.

Hurwitz testified that he did not know any of his patients were dealing drugs.

Expert witnesses have testified for both prosecutors and the defense, differing on whether Hurwitz's prescriptions were medically justified. Among the doctors to testify on Hurwitz's behalf was Russell Portenoy, chairman of the pain management department at Beth Israel Medical Center in New York and considered to be one of the world's leading experts on pain management.

Hurwitz treated nearly 500 patients from 39 different states in the late 1990s through 2002, receiving a $1,000 initiation fee and monthly fees of up to $250 for each patient in the practice.

The trial was to resume Tuesday with Hurwitz's cross-examination and is expected to go to the jury this week after more than one month of testimony.

He faces up to life in prison if convicted on the most serious charges.





Dec 02, 2004

Friends,

The government rested its case against Dr. Hurwitz yesterday. Significantly, they failed to deliver on a promise made during opening statements. They had promised that undercover tapes would prove that Dr. Hurwitz was aware of ongoing diversion of controlled substances and continued to prescribe anyway. They presented no such evidence.

Today was the first full day of defense testimony. Steve Passik spent the morning on the witness stand discussing conceptual issues surrounding the controversy about aberrant drug-related behaviors. He made it clear that these behaviors are not in and of themselves automatically diagnostic of anything, and that complex clinical judgments are required in order to assess their meanings. Dr. Passik pointed out that these criteria are better characterized as AMBIGUOUS drug-related behaviors.

A registered nurse who worked in Dr. Hurwitz' office gave a fair and accurate representation of what went on there. She discussed the difficult decision making process that occurred in dealing with patients who were less than compliant with their treatment plans.

Finally, three patients testified today. All made it clear that Dr. Hurwitz' heroic treatment had been life saving. This occurred after the remainder of the medical establishment had failed them, sometimes for more than a decade.

The testimony of a nice lady from New Mexico moved moved members of the jury, and courtroom staff to tears. She described the torment that had reduced her to years of a bedridden existence, consisting of pain and vomiting, prior to Dr. Hurwitz' treatment restoring her to a functional existence.


Frank





Dec 1, 2004
Nurse wanted to oust 'seedy' patients
from doctor's drug practice
By MATTHEW BARAKAT
Associated Press Writer
http://tinyurl.com/3ljkn

ALEXANDRIA, Va. -- A nurse who worked for a McLean doctor accused of using his office as a front for drug trafficking testified that the doctor rebuffed her concerns about patients who were "a little bit creepy or seedy characters" and frequently demanded a high volume of drugs.

Susan Cruz of Herndon, a nurse practitioner in the pain-management clinic of William E. Hurwitz, said Tuesday at Hurwitz's trial that she recommended Hurwitz discharge from the practice a group of patients from Manassas who frequently demanded early refills of their prescriptions for potentially illicit drugs like OxyContin.

In some cases, Cruz said she was concerned because of the patients' incessant demands for drugs. In one case, she had learned that a patient was facing drug charges.

"I felt they were a little bit creepy or seedy characters," she said. "It was just a feeling I had about those patients."

Hurwitz, though, decided to keep treating the patients and prescribe opiates in amounts that were at times massive, as much as 1,600 pills a day in one case.

"Dr. Hurwitz said that first of all, a person is innocent until proven guilty. He also said (my concerns) could be a social bias, because these people came from a blue collar background," Cruz said. "And he said that even if a patient has a problem with addiction they still deserve pain treatment."

Many of those patients have struck plea bargains on drug charges stemming from the investigation and testified against Hurwitz at trial.

Federal prosecutors have charged Hurwitz with numerous counts of drug trafficking, including two cases that resulted in death. He faces up to life in prison if convicted.

Prosecutors say he knowingly prescribed massive amounts of drugs to addicts and drug dealers. They also allege that two patients who came to him seeking legitimate pain treatment were prescribed such massive amounts of drugs that he was responsible for their overdose deaths.

Hurwitz's lawyers dispute that Hurwitz's prescriptions were the cause of those patients' deaths. They acknowledge that he prescribed at times massive amounts of opiates to the 300 or so patients enrolled in his clinic, but say it was part of an emerging medical trend that encourages high-dosage opiate treatment for pain management.

Cruz, a defense witness, testified that Hurwitz employed a collaborative approach with his patients to ensure that they were receiving adequate pain relief.

"Only a patient can tell us how much pain he has," she said.

It was under cross-examination from prosecutor Gene Rossi that she testified about her concerns about some of the clinic's patients.

Prosecutors rested their case Tuesday after nearly four weeks of testimony.

The defense team's first witness--William Barr, a pharmacology professor at Virginia Commonwealth University in Richmond--was barred from offering most of his testimony when U.S. District Judge Leonard Wexler ruled that the defense had improperly failed to notify prosecutors about the substance of Barr's testimony.

The trial is expected to go to the jury next week.






Epic and Turbulent Times
By David Borden - Drug War Chronicle



Dec 2004 - These are turbulent times in issues related to the drug war. In one frightening criminal trial, Dr. William Hurwitz, a Virginia physician who has helped numerous chronic pain patients whom other doctors wouldn't, is facing drug charges -- charges many observers consider unreasonable if not trumped up. And in an epic case coming to the US Supreme Court Monday morning, patients who use medical marijuana are arguing that the federal government overstepped its authority when it interfered with their lives.

Dr. Hurwitz is a long time hero to the pain patient movement. In 1996 he was exonerated by the Virginia Board of Medicine after an ugly investigation that drew calumny upon the board and drove at least one of Hurwitz's former patients to suicide for lack of treatment. Not satisfied, federal prosecutors targeted him again.

During the multi-week trial, which is ongoing at the Alexandria, Virginia, federal courthouse, DAs have trotted out addicted drug convicts who went to Dr. Hurwitz for prescriptions. These former Hurwitz patients -- who presumably are being compensated with leniency in exchange for their testimony -- claim to have sold some of the opiate drugs Dr. Hurwitz prescribed to them. Prosecutor Paul McNulty is arguing that Hurwitz must have known they weren't being honest with him about their pain levels, and that by prescribing them what they wanted he crossed the line "from healer to dealer." If he convinces the jury of this, Dr. Hurwitz could go to prison for life.

Frank Fisher, another doctor who faced down the authorities over pain control at great personal cost, describes Dr. Hurwitz as the "most ethical" doctor in the pain movement. Hurwitz treats the patients other doctors are most scared to treat -- pain patients whose backgrounds or histories, including addition difficulties, might make them more of a risk of abuse or drawing prosecution. Hurwitz treats them, according to Fisher, because medical ethics, humanitarianism itself, requires they be treated. Fisher told me, following a recent Congressional briefing on this subject organized by the Association of American Physicians and Surgeons, that the question lying at the heart of the Hurwitz case is whether there is a class of people who are not allowed to receive appropriate treatment for chronic pain.

Angel Raich and Diane Monson, medical marijuana patients, and their two anonymous caregiver/growers, brought suit against John Ashcroft after the Dept. of Justice initiated raids three weeks after 9/11/01 against medical marijuana cooperatives across the state of California. The heart of their case is a challenge to the government's interpretation of the Interstate Commerce Clause in the US Constitution. Raich and Monson charge that provision of marijuana, to patients who need it as a matter of medical necessity, by private growers intra-state (within the state's borders), is not interstate commerce (across state lines). The government contends that any activity involving marijuana can be regulated by Congress, because in theory the marijuana could cross state lines and be sold elsewhere -- even if it's not. The case is considered one of the most important on the court's docket.

As Dr. Hurwitz's trial was looming, the DEA and a number of medical organizations and experts released a "consensus statement" on pain control. Then, a few weeks later, DEA suddenly retracted the statement, saying it contained errors but not explaining what they were. Pain advocates charged it was because the document was cited by Dr. Hurwitz's lawyers in his defense, and DEA didn't want anything out there that might help him. A short statement published this month seemed to indicate that DEA's motives included a desire to preserve unfettered the government's ability to investigate and prosecute any doctor at anytime. Drug War Chronicle tried to write an article for this issue about this latest DEA communique, but neither the DEA nor any of the several medical bodies involved in the consensus statement whom we contacted returned our phone calls. There seems to be a lot of embarrassment about this. To which I say, there should be, at least on the DEA's part.

With Raich v. Ashcroft looming, the plaintiff's side gained some unexpected allies in the form of the attorneys general of three southern states. They are not pro-medical marijuana -- one of them told Time magazine he considers the state medical marijuana laws to be "misguided" -- but for them it is about states' rights. We'll see what happens.

Regardless of the outcomes, patients should not have to resort to the courts to claim their natural rights against the government; and doctors practicing honest, compassionate medicine should not have to be dragged through the courts to prove that they shouldn't spend their lives in prison for doing it. On both counts, this court of public opinion finds the federal government guilty.



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November 10, 2004
Pain Doctor’s Trial Begins


Was McLean doctor a criminal drug dealer, or a compassionate doctor victimized by a few patients?
By Ken Moore


DETOX FROM OXYCONTIN for Cynthia Denise Horn, the U.S. government's second witness in its case against McLean doctor William Eliot Hurwitz, took place in an Alexandria jail.

At the time of her July 8, 2002, arrest for conspiracy to distribute OxyContin, Hurwitz was writing prescriptions to Horn for thirty 160-milligram OxyContin pills per day, 80 times the amount she said she got from other doctors. "After I got off the pills, I felt like I was 18 again," said Horn, 43, of Manassas, who testified on the second day of the trial, Friday, Nov. 3, that she called Dr. Hurwitz from jail a few weeks after her arrest. "I told him he needed to stop giving OxyContin to people," said Horn, dressed in a black-and-white striped prison outfit. "It was destroying their lives."

THE TRIAL of Dr. William E. Hurwitz of McLean began in Alexandria last Thursday, Nov. 4, at the U.S. District Court for the Eastern District of Virginia before Senior Judge Leonard D. Wexler.

The 62-count indictment against Hurwitz, who closed his practice in 2002, includes charges of conspiracy to distribute controlled substances, drug trafficking resulting in death, drug trafficking resulting in serious bodily injury, engaging in continuing criminal enterprise, and health-care fraud.

"A self-proclaimed healer, he crossed the line to a drug dealer," said Mark D. Lytle, assistant U.S. attorney, in the prosecution's one-hour opening statement last Thursday. "He thought he could hide behind the pain he treated."

BUT HURWITZ'S ATTORNEYS contend that he is a nationally known doctor who provided needed care for patients suffering from chronic, intractable pain. "The undertreatment of pain is a serious and widespread health issue," according to documents filed on Nov. 1 by Hurwitz's attorneys Patrick S. Hallinan, Kenneth H. Wine and Marvin D. Miller.

From July 1998 to December 2002, Hurwitz treated more than 400 patients for chronic pain. "Chronic pain is with you all day long, all night long, and makes you suffer every day. It destroys your life," Hallinan said, in opening statements for the defense last Thursday.

Dr. Hurwitz treated patients who ranged from 18 to 74, and included patients with “phantom limb” pain, patients who had undergone multiple surgeries, injury victims and people with migraine headaches, multiple sclerosis, AIDS and terminal illnesses. "Given their previous medical histories, these patients are candidates for the type of medication therapy used by Dr. Hurwitz, which often involves high dosages of opioid drugs," according to Hallinan, Wine and Miller. "It is important to understand that chronic pain patients are not those suffering from transitory or easily treatable causes of pain," they wrote. "A lack of public understanding about the nature of pain therapy and overbearing actions of regulatory authorities have combined to impede access to pain treatment, deter physicians from practicing pain medicine, chill the legitimate prescription practices of physicians who do treat pain, and thereby deny patients in this county their constitutionally protected right to relief from unnecessary suffering."

SIX WITNESSES for the prosecution testified in the first two days of the trial, which is expected to last up to six weeks. Assistant U.S. Attorney Gene Rossi introduced Horn and her 18-year-common-law husband Kevin L. Fuller, 42, as the prosecution's first two witnesses. Fuller, who first started seeing doctors following three knee surgeries in 1985, 1987 and 1991, sold multitudes of the OxyContin pills prescribed by Hurwitz to continue to support their drug habits. "I had a lot of pain, but I exaggerated it, trying to get the drugs," Fuller said.

Fuller, who pled guilty to conspiracy to distribute OxyContin and was sentenced to 188 months in jail, first went to Hurwitz on Aug. 4, 1998, at Hurwitz's home office on Swinks Mill Road. He testified that he paid Hurwitz a $1,000 initiation fee that was required to be paid in cash, plus a monthly fee that Horn said cost $250. "I heard he was 'The Man,' the doctor who would help you get what you need," Fuller said. "When you're a drug addict hooked on OxyContin, you try to get what you want."

Fuller testified that he made a $229,000 profit in a 50-day period from March 26, 2001, to April 30, 2001, by selling prescribed pills. "I paid my bills, bought me a nice bike, and bought a whole lot of crack," Fuller said. But when cross-examined by Hallinan, Fuller admitted he had "played a lot of doctors" over the years to get OxyContin. Fuller called Hurwitz naive, but he also said the doctor was “his friend.” "He was concerned about me and my wife," Fuller said. "Dr. Hurwitz is always concerned."

PAULA JANE FARMER, the prosecution's fifth witness, who testified Friday, said prescriptions for OxyContin and Dilaudid from Dr. Hurwitz to her husband, John Farmer, cost $40,000 a month to fill."We had to have more and more and more," said Farmer, 40, of Centreville, who was granted immunity for assisting the prosecution in its case. Her husband died in 2004 of an overdose; he was not under Hurwitz's care at the time.

During his opening statement, Hallinan called some of Hurwitz's patients "professional predators" who took advantage of Hurwitz's trust. "It is the patient that hurts, the patient that suffers," Hallinan said, "and protocols of medicine say listen to your patient.”

Hurwitz kept detailed records regarding all his patients, including Horn, Fuller and Farmer, which his lawyer said points to his innocence. "These medical records are in stone," Hallinan said. "You think someone involved in a scam of selling pills will document this?"




1st Day of Trial



11/05/04 - Federal prosecutors yesterday portrayed prominent pain doctor William E. Hurwitz as a man who used his white coat and prescription pad to traffic in narcotics, spreading the abuse of addictive painkillers nationwide and ultimately leading to the deaths of several patients.

During the opening day of his trial in U.S. District Court in Alexandria, prosecutors outlined a 62-count indictment against the McLean doctor that includes charges of drug trafficking resulting in death and serious bodily injury, conspiracy to traffic in controlled substances and health care fraud.

During the trial, which is expected to last as long as eight weeks and has drawn national attention from advocates for patients with chronic pain, prosecutors intend to prove that Hurwitz, 59, was "a drug dealer in his own right," entering into sketchy financial agreements with patients whom he provided with countless prescriptions for painkillers such as OxyContin -- sometimes up to 600 pills per day.

Prosecutors said those patients used the drugs both to fuel their own addictions and to make huge profits on the black market.

"The indictment tells the story of someone who crossed over from a self-proclaimed healer to a drug dealer," Assistant U.S. Attorney Mark Lytle told the jury during opening statements. "Dr. Hurwitz was playing the role of an illegal drug supplier."

Hurwitz's attorneys have denounced the charges against their client as an attempt by the government to criminalize good medical practice. They say Hurwitz was providing needed pain management to a class of patients whose chronic suffering "destroys your body . . . your soul."

"This case is not about drug dealing," said defense attorney Patrick S. Hallinan, who is based in San Francisco. "This is a case about new science: the treatment of chronic pain with high opioid doses to ameliorate that pain."

The trial is the culmination of a two-year federal investigation into doctors, pharmacists and patients suspected of selling potent and addictive painkillers. About 50 people have been convicted. Law enforcement sources said the probe is ongoing, though Hurwitz was one of the ultimate targets.

Before he closed his practice in 2002, Hurwitz was considered a major figure in pain management. If convicted of the most serious counts, Hurwitz, who has been free on $2 million bond, faces up to life in prison.

During the government's presentation yesterday, prosecutors showed the jury enlarged photographs of medical records allegedly written by Hurwitz that mention a patient's arrest for selling drugs. Although prosecutors said evidence -- including a recording of a conversation between Hurwitz and one of his patients -- will show that the doctor knew his patients were abusing drugs and in some cases selling them, Hallinan said the opposite is true.

"For goodness sake," Hallinan said, "these medical records are in stone. You think someone involved in a scam selling pills would put it down in the records?"

Hallinan told the jury that his client would "never tolerate the dissemination of medications into the community" and denied prosecutors' claims that patients told Hurwitz they were actively selling the drugs.

Rather, he said his client was the victim of "professional predators" who took advantage of his medical practice in order to obtain drugs and sell them for a profit.

If Hurwitz worked in Beverly Hills or healed only "the upper middle class," Hallinan said, he would not be in this predicament.

"These were poor people who couldn't resist . . . the temptation to get more pills than they need and sell them," said Hallinan, describing one of Hurwitz's patients who later agreed to cooperate with investigators and wore a wire to tape their conversations.

Prosecutors contend that a conversation includes Hurwitz suggesting that his patient get an unnecessary MRI to falsely support his heavy prescriptions. Prosecutors say the patient also discloses his arrest for possession of cocaine. Still, they said, Hurwitz prescribed the patient 300 tablets of OxyContin.

"That tape recording provides a window into the real Dr. Hurwitz," Lytle told the jury. "As a doctor, he thought he could hide behind the pain he treated."

Prosecutors allege that Hurwitz made large profits by charging an initiation fee of $1,000 for each patient and then $250 a month for maintenance. They said Hurwitz had about 470 patients in his clinic over the last five years, resulting in millions of dollars in profit.

Several of those patients died and others overdosed, prosecutors said yesterday, telling the jury they can link the incidents to Hurwitz's overzealous dosages.

Several of Hurwitz's friends and former patients were in the courtroom yesterday to lend support.

Siobhan Reynolds is executive director of the Pain Relief Network. Her former husband suffers from a congenital tissue disorder that she said has left him with intractable pain. He was a patient of Hurwitz's until the practice was closed.

"He saved my husband's life for sure," said Reynolds, adding that Hurwitz was "brave enough" to give her husband the care and the medication he needed -- extraordinarily high doses of OxyContin, Dilaudid and Fentanyl -- when other doctors were afraid to act.

"Other doctors who might have been persuaded to get involved see this as a precautionary tale," she said, referring to the trial. "Who wants this?"

Newshawk: chip
Pubdate: 5 Nov 2004
Source: Washington Post (DC)
Author: Leef Smith
Webpage: http://www.washingtonpost.com/wp-dyn/articles/A26799-2004Nov4.html

U.S. Calls Doctor Dealer, Not Healer
Trial on Drug Charges Begins in Va.
By Leef Smith
Washington Post Staff Writer
Friday, November 5, 2004; Page B07



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