Pubdate: Wed, 02 May 2007
Source: Reason Online (US Web)
Copyright: 2007 The Reason Foundation
Contact:  http://www.reason.com/
Details: http://www.mapinc.org/media/2688
Author: Jacob Sullum

GOOD COP, BAD DOCTOR

William Hurwitz's Conviction Tells Physicians To Put Drug Control 
Above Pain Control

In April 2002, a patient asked Virginia pain doctor William Hurwitz 
to write her a new prescription for methadone because her dog had 
eaten the original. Since this patient was arrested on drug charges 
four months later, her timeworn excuse looks like an obvious "red 
flag," one of many federal prosecutors would fault Hurwitz for ignoring.

Yet as the former owner of a sweet but destructive Labrador 
retriever, I can testify that dogs do sometimes shred and chew up 
valuable items. When that happens to a prescription for much-needed 
pain medication, what should a legitimate patient do? The 
government's answer, which Hurwitz could not in good conscience 
accept, can be summed up in one word: suffer.

By prosecuting Hurwitz for drug trafficking because some of his 
patients abused or sold painkillers he prescribed, the Justice 
Department reminded physicians throughout the country that they are 
expected to be cops as well as doctors. If they fail to reconcile 
these irreconcilable roles, if they do not treat their patients like 
criminals as well as customers, they can be convicted of felonies 
punishable by decades in prison, as Hurwitz was last week.

Hurwitz was a bad cop. He believed his patients when they said they 
were in pain. He gave them the benefit of the doubt when they asked 
for early refills, which could indicate diversion but also could 
indicate inadequate doses. He continued treating their pain after 
they tested positive for cocaine. He hesitated to abandon problem 
patients he knew would have trouble getting treatment elsewhere.

The qualities that made Hurwitz a bad cop also made him a 
compassionate doctor, the sort you would want treating you if you 
suffered from unrelenting chronic pain and needed large doses of 
narcotics simply to live a halfway normal life. Because few doctors 
are willing to accept the legal jeopardy associated with treating 
such patients, Hurwitz's clinic attracted hundreds from around the country.

After Hurwitz's practice was shut down in 2002, two of his patients 
killed themselves because they could not get adequate pain relief 
anywhere else. In the face of such desperation, Hurwitz's conviction 
sends exactly the wrong message, telling doctors they risk their 
liberty as well as their licenses and livelihoods if they place their 
patients' interests above the government's demand that they help 
fight the war on drugs.

The Hurwitz case shows it's not just "pill mill" operators who need 
to worry. The jury, which convicted him on 16 out of 45 counts and 
acquitted him on 17 (the judge dismissed the rest), did not seem to 
accept the government's portrayal of him as a drug dealer in a white coat.

In interviews with New York Times science columnist John Tierney, 
three jurors conceded that Hurwitz, who received no money from 
black-market drug sales, appeared to be a sincere physician who was 
hoodwinked by unscrupulous patients. "These patients used the doctor 
shamelessly," said one juror. "I don't see him getting anything 
financial out of it. Many of the patients weren't even paying him. He 
had to believe that he was just treating them for pain."

This was the very issue that last year led the U.S. Court of Appeals 
for the 4th Circuit to overturn the 25-year prison sentence that 
resulted from Hurwitz's first drug trafficking trial. The prosecution 
said it did not matter whether Hurwitz was acting in good faith, and 
the appeals court disagreed.

"There were just some times he fell down on the job," a juror told 
Tierney. Which job? Some critics have accused Hurwitz of bad medical 
judgment, to which the proper legal response is civil liability or 
regulatory sanctions, not prison. The criminal case against him 
focused on his failure as a cop, not as a doctor. If any of the 
jurors who convicted him ever have the misfortune of suffering pain 
severe enough to require strong medication, you can be sure they 
won't be looking for a good cop.
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