HTTP/1.0 200 OK Content-Type: text/html Doctor In Va. Drug-Trafficking Case Granted New Trial
Pubdate: Thu, 24 Aug 2006
Source: New York Sun, The (NY)
Copyright: 2006 The New York Sun, One SL, LLC.
Author: Josh Gerstein, Staff Reporter for the Sun
Bookmark: (Doctor Hurwitz)
Bookmark: (Chronic Pain)


Medical groups are hailing a federal appeals court's decision to grant
a new trial to a Virginia doctor accused of drug trafficking for
prescribing large quantities of narcotics to his patients.

The 4th Circuit Court of Appeals ruled Tuesday that jurors at the 2004
trial of Dr. William Hurwitz of McLean, Va., were improperly prevented
from considering whether he acted in good faith. He was convicted on
50 counts and sentenced to 25 years in prison.

An appeals court judge, William Traxler Jr., wrote that the jury
should have been told that Dr. Hurwitz committed no crime if he had a
reasonable, good-faith belief that the prescriptions were appropriate
medical care. "A doctor's good faith in treating his patients is
relevant to the jury's determination of whether the doctor acted
beyond the bounds of legitimate medical practice," Judge Traxler said.
"The district court effectively deprived the jury of the opportunity
to consider Hurwitz's defense."

The case attracted the attention of physicians and patients' advocates
who said the tough punishment could discourage doctors from providing
adequate medication to those with severe pain.

Prosecutors argued that Dr. Hurwitz wildly overprescribed pain-killing
drugs such as OxyContin and Dilaudid, giving one patient prescriptions
for more than half a million pills over a 40-month period. The
government also said there was evidence the physician suspected that
some of his patients were selling a portion of their prescribed medicines.

Defense attorneys contended that Dr. Hurwitz acted within professional
standards and that patients suffering from long-term pain can require
extremely high doses of narcotics because smaller doses often become
ineffective over time. The defense acknowledged that Dr. Hurwitz had
been disciplined by state medical boards, but said those agencies
"were back in the Stone Age."

A past president of the American Academy of Pain Medicine, Dr. Scott
Fishman, said his group has not formally endorsed or rejected Dr.
Hurwitz's methods, but filed an amicus brief because the court
proceedings put all doctors in jeopardy. "On the surface, this is a
case that appears to be an issue around a doctor who is at the extreme
of practice, if not over the line," Dr. Fishman, a professor at the
University of California at Davis, said. "It was about whether he got
a fair trial. We felt if we didn't stand up in this case, future
legitimate appropriately prescribing physicians could be prosecuted as
drug dealers. We're trying to protect patients."

A libertarian-oriented physicians group, the American Association of
Physicians and Surgeons, offered a more robust defense of Dr. Hurwitz.
"Billy Hurwitz is an accomplished physician at the cutting edge of
medicine, trying to help his patients," a lawyer for the group, Andrew
Schlafly of Far Hills, N.J., said. "This guy published articles in
medical journals. He had a medical approach."

Mr. Schlafly said federal prosecutors overreached by using the
criminal justice system to control doctors. "The federal government
has no business mischaracterizing a doctor as a drug dealer and
interfering in the states' regulation of the practice of medicine,"
the lawyer said.

Mr. Schlafly said the defense victory was remarkable because the 4th
Circuit is considered the most pro-government of the federal appeals
courts. "This was a rarity, really," he said.

An attorney for Dr. Hurwitz, Lawrence Robbins, said he was "delighted"
with the decision. He said overzealous prosecutors had "chilled the
availability of legitimate and legal pain management."

Prosecutors said through a spokesman that they were considering their
options, which include asking the full bench of the 4th Circuit to
rehear the case.

While the appeals court panel was unanimous in granting Dr. Hurwitz a
new trial, they differed over precisely what jurors should have been
told. Judge Traxler and another judge, Cameron Currie, favored telling
jurors that the doctor's belief he was acting appropriately had to be
both in good faith and objectively reasonable. However, the third
judge on the panel, Hiram Widener Jr., dissented, saying that made
little sense. "The two terms are contradictory, it seems to me," he
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