Federal Prosecution of Pain Docs Impedes Pain Treatment
In the spring of 2003, William Hurwitz, MD, JD, wrote an article (J Am
Physicians Surg 2003;8:13) addressing the federal prosecution of physicians who
allegedly overprescribe controlled substances for the management of pain.
Specifically, he discussed the impact that such prosecution can have on both
physicians and patients. Dr. Hurwitz, a pain medicine physician who was in private
practice in McLean, Va., wrote the following:
"When doctors are charged [with malpractice by the federal government], their
practices are closed summarily, without warning and without provision for
cushioning the blow to innocent and suffering patients. Patients are subjected to
the abrupt cutoff of medications and clinical support. The stigma that they
suffer, both as pain patients on opioid medications in general and as former
patients of accused doctors in particular, tends to foreclose most opportunities
for effective continuing care."
Just six months later, in September 2003, Dr. Hurwitz was apprehended by the
Drug Enforcement Agency (DEA) and state and local agencies in Virginia for
multiple drug charges related to his practice. He was arrested on a 49-count
indictment that included various violations of the Controlled Substances Act, drug
trafficking that resulted in both serious bodily injury and death from
overdose in several of his patients, and one healthcare violation.
In April 2004, Dr. Hurwitz is scheduled to be tried for the charges in
A CHILLING EFFECT
Whereas Dr. Hurwitz's case is one of a small number of such prosecutions by
the federal government, the highly publicized arrest of alleged diverters has
created an atmosphere of fear among pain physicians. Many have dubbed this
phenomenon a "chilling effect," which has caused pain physicians to underprescribe
opioids for pain for fear of scrutiny by the federal government. And pain
management professionals across the board--from doctors to lawyers to members of
the law enforcement community--are concerned that underprescribing may be
leaving patients in pain without sufficient medications.
"The chilling effect on good doctors is probably the biggest problem of all,"
Jennifer Bolen, JD, President, J. Bolen Group, Knoxville, Tenn., told Pain
Medicine News. "Doctors are scared to death that enforcement agencies will come
after them just because they write a prescription for OxyContin [oxycodone,
PurduePharma] or other drugs that are way up on the radar screen."
John F. Peppin, DO, FACP, who is the owner of the Iowa Pain Management Clinic
in Des Moines, explained the important role that pain management plays in
"Pain has a tremendous physiologic, sociologic, psychological and existential
impact on the individual and society, is undertreated and underassessed, and
costs our society over $100 billion each year," he said. "What has undoubtedly
made the most tremendous impact on pain relief and cost savings to chronic
pain are opiates. Physiologically you cannot find medications as safe as these
drugs. Treating pain well saves money, lives, marriages and people in the
IS THE CHILLING EFFECT A MYTH?
Following Dr. Hurwitz's arrest, the DEA issued a press release on October 30,
2003, attempting to appease the concerns about the threat of federal
prosecution of physicians who prescribe controlled substances. In it, the DEA argued
that most pain physicians practice medicine responsibly, and that their chances
of being prosecuted are minimal. The statement reads as follows:
"The vast majority of practitioners registered with DEA comply with the
requirements of the Controlled Substances Act and prescribe controlled substances
in a responsible manner in treating their patients' medical needs."
In fact, the number of physicians who overprescribe pain medications is
minimal, according to several sources.
An article published in the South Florida Sun-Sentinel (November 30, 2003)
stated that fewer than 3% of Florida's medical professionals prescribe the
majority of prescriptions annually. The story, which investigated the number of
pharmacy billings for prescription pain medications in Florida during an
eight-month period, found that only six doctors were responsible for ordering more
than $1 million worth of prescription pain medications, while most of the state's
aproximately 57,000 medical professionals prescribed less than $100,000 worth
of pain medications each during the same period. Furthermore, prescription
drug-related deaths in the state during that period were linked to many of the
doctors prescribing pain medications in high volumes, according to the article.
In terms of the total number prosecutions, approximately 30 cases against
doctors and other pain professionals are pending or proceeding across the United
States, according to the Association of American Physicians and Surgeons.
FEDERAL PROSECUTION--A REAL THREAT
Despite the small number of federal prosecutions, the fact remains that
prescription medications are increasingly being used recreationally; the nonmedical
use of OxyContin quadrupled from 1999 to 2001, according to the DEA.
This increase has led the U.S. government to increase its scrutiny of medical
"Investigations have had a definite chilling effect," said Scott M. Fishman,
MD, Professor of Anesthesiology and Chief of the Division of Pain Medicine at
the University of California, Davis School of Medicine and author of the book
The War on Pain.
"For the DEA and the Department of Justice to deny this is
disingenuous. Doctors who have undergone these investigations say it was hell.
Agents come in with a great deal of bravado and devastate your practice and
your life," he told Pain Medicine News.
Dr. Hurwitz also wrote about the prosecution of pain management professionals
in an article he called the "The Police State of Medicine."
On August 31, 2002, he stated on his Web site www.DrHurwitz.com:
"In spite of the increasing expert support for opioid therapy, physicians
have received mixed signals regarding the acceptability of this treatment. Over
the last couple of years, public attention has been focused on OxyContin, with
stories of overdose deaths, pharmacy robberies, and allegedly corrupt doctors.
State medical boards have not uniformly accepted expert professional opinion.
But a more ominous development is the increasing pace of state and federal
criminal prosecution of physicians engaged in pain practice. This is apparently
part of a federally coordinated strategy to stop the diversion of OxyContin
and other prescription medications at the source--by targeting doctors whose
practices focus on medical pain management."
IN SUPPORT OF DR. HURWITZ
Siobhan Reynolds, Executive Director of the Pain Relief Network, New York
City, and the spouse of one of Dr. Hurwitz's patients, believes Dr. Hurwitz not
only practiced safe medicine but saved her husband's life.
"I didn't know that pain could be that debilitating," she said. "My husband's
pain got worse and worse, and my life became a complete battle to convince
doctors to prescribe anything just to keep him from killing himself."
Her husband, Sean E. Greenwood, of New York City, suffered from Ehlers-Danlos
syndrome, a debilitating and painful hereditary connective tissue disorder.
During the months that Dr. Hurwitz treated Mr. Greenwood, he prescribed a
variety of opioids, adjusting the time of day to take them based on their
side-effect profiles to improve his quality of life, according to Ms. Reynolds. "His
pain was more tolerable," she said. "He was up and walking around. He became
Mr. Greenwood continued to see Dr. Hurwitz until the DEA charged him with
drug trafficking and seized all his medical records. "He was under constant
surveillance," said Ms. Reynolds. "He had a very specific, intrusive relationship
with the authorities that he had to abide by in order to practice medicine at
"William Hurwitz was working under supervision of the state medical board,
with approval, and they still prosecuted him," confirmed Dr. Fishman. "He may be
the first doctor who was practicing with the approval of a supervising body
and still got prosecuted. He was accused of making millions, which is a massive
distortion. It was in fact something like $2 million over a period of years,
which is not a great deal of money for a medical practice."
ADOPTING A PROACTIVE RELATIONSHIP
Whereas many criticize the way in which the prosecution of pain physicians is
being handled, some experts in the field of pain medicine prefer to adopt a
proactive relationship with the regulatory agencies.
"I have had no problem with the medical board or the DEA and feel that we
have worked very cordially with them," said Dr. Peppin. "As pain physicians, we
need to communicate proactively with the regulatory agencies. We need to
contact medical boards and the DEA, tell them what we are doing, how we run our
practices, ask their advice, and continue to communicate with them over time."
Ms. Bolen notes that state medical boards, rather than the DEA, are
responsible for scrutinizing the prescribing practices of physicians.
"While there may be a DEA presence in some of these cases, it's usually not
the DEA that is initially involved," she said. "It's much more likely to be
medical boards, state and local law enforcement, such as Medicaid fraud control
units, and the investigation arms of healthcare benefit programs."
"I teach a lot of investigators that, from a pain management point of view,
you don't base cases [of federal prosecution] on pill numbers, combinations of
pills, types of drugs, or unusual combinations in and of themselves," said Ms.
Bolen, who lectures across the country educating investigators and physicians
SOLVING THE PROBLEM
Finding a balanced solution to this problem "requires understanding and
proper training of insurance investigators, pharmacists, doctors, the DEA, state
agencies and patient groups. The enemy is misunderstanding, and the solution is
communication," Ms. Bolen suggested. She recommends that pain specialists
draft guidelines for legitimate medical practice that all physicians can follow.
"Most states have failed to do this," she said.
In addition, Ms. Bolen referred to the American Society of Interventional
Pain Physicians' proposed national patient monitoring electronic database. She
said that she thinks a national monitoring program will help combat prescription
drug abuse, but that to date only 19 states have some form of a prescription
"A lot of [diversion] happens in rural states, where it is
possible to obtain medicine from several different doctors, and [physicians]
don't know about it because, in most cases, they have no electronic database
to check up on potential doctor-shopping behaviors," she said.
Ms. Bolen is also excited about two educational events taking place later
this year that will help accomplish the goal of educating law enforcement about
legitimate medical practice. The National Health Care Anti-Fraud Association
will sponsor regional conferences in March and July of 2004 at which doctors and
pharmacists specializing in pain management will talk to law enforcement
about medical practice and diversion. "It's usually the other way around," she
Dr. Peppin agrees. "There must be a middle ground where pain doctors and law
enforcement can come together," he said.
Based on interviews with Siobhan Reynolds, Jennifer Bolen, JD, Scott M.
Fishman, MD, and John F. Peppin, DO.
Family Member of a Chronic Pain Patient
Founding Executive Director
"Standing up for patients in pain and the doctors who treat them"