The doctor is not a criminal: a painful drug-war case in Virginia

National Review, May 23, 2005 by Jacob Sullum

IN December, after a federal jury convicted Virginia pain doctor William Hurwitz of running a drug-trafficking operation, the jury's foreman made a puzzling comment to the Washington Post: "He wasn't running a criminal enterprise." Hurwitz, who was sentenced to 25 years in prison on April 14, was charged with drug trafficking because some of his patients abused or sold the narcotic painkillers he prescribed for them. Calling him a "major and deadly drug dealer," prosecutors argued that his practice amounted to a "criminal enterprise" because he charged for his services and should have known that some of his patients were faking or exaggerating their pain.

Judging from the comments of their foreman, Ralph Craft, the jurors didn't really buy this theory. But they convicted Hurwitz anyway, because they felt he was "a bit cavalier" in the way he prescribed opioids. They confused their role as jurors in a criminal case with the roles of the state medical board that regulates doctors and the civil courts that hear malpractice lawsuits. By convicting Hurwitz of, in essence, trusting his patients too much, they put physicians on notice that they can go to prison for prescribing opioids to people who turn out to be addicts or dealers. That knowledge is bound to have a chilling effect on pain treatment, which is already scandalously inadequate because of the fear instilled by the war on drugs.

The prosecutors did not dispute that Hurwitz, a widely known pain specialist and prominent critic of federal drug policy, had helped hundreds of patients recover their lives by prescribing the narcotics they needed to control their chronic pain. Instead they pointed to the small minority of his patients--5 to 10 percent, by his attorneys' estimate--who were misusing the painkillers, selling them on the black market, or both. The prosecutors did not claim that Hurwitz got so much as a dime from illegal drug sales. Instead they pointed to his income as a physician, which they said was boosted by fees from bogus patients. The prosecutors did not allege that Hurwitz had any sort of explicit arrangement with those patients. Instead they described a "conspiracy of silence," carried out by "a wink and a nod."

The evidence supporting this theory was ambiguous at best, leaving plenty of room for reasonable doubt. None of the surreptitiously recorded conversations with patients-turned-informants presented by the prosecution included any acknowledgment of the conspiracy Hurwitz supposedly led. To the contrary, the testimony of former patients convicted of drug dealing tended to confirm Hurwitz's defense that he was tricked by "predators" who always knew the right thing to say to get more drugs.

A former patient called as a prosecution witness testified, "I had a lot of pain, but I exaggerated it, trying to get the drugs." On cross-examination, he added that he had "played a lot of doctors" over the years. He characterized Hurwitz as naive, saying, "He was concerned about me and my wife [also a patient]. Dr. Hurwitz is always concerned." Another former patient recalled using makeup to cover injection marks on his arm and smoking crack before appointments so he would not seem suspiciously sleepy. All described the lies they told: complaints of unrelieved pain, reports of lost prescriptions, explanations for brushes with the law.

If there was a conspiracy, asked defense attorney Patrick Hallinan, "why would you have to lie?" And if Hurwitz and his patient-dealers were in cahoots, why would he carefully record all the potential signs of trouble the prosecution would later cite as evidence of his "head-in-the-sand attitude"? Hallinan conceded that Hurwitz may have displayed "a degree of naivet," and "even foolishness" in accepting some of his patients' stories. But he persuasively portrayed Hurwitz as "the perfect mark for these people": a doctor dedicated to helping patients in pain and reluctant to cut them off when they misbehaved.

Prosecutors maintained that Hurwitz's intentions didn't matter. As they put it in a post-verdict brief: "It is sufficient to prove a physician prescribed controlled substances while acting outside the bounds of medicine, regardless of whether he had a good faith belief that he was fulfilling a legitimate medical purpose." Since Hurwitz was "acting outside the bounds of medicine," the government argued, his prescriptions amounted to drug trafficking.

Hence the death of one patient from a morphine overdose that the government attributed to Hurwitz's excessive prescribing (the defense emphasized that the dose she took was smaller than what she had safely tolerated the day before) was not simply malpractice; it was "drug trafficking resulting in death." More generally, the prosecution criminalized (and federalized) what would ordinarily be treated as allegations of medical negligence. The point is not that Hurwitz's practice was beyond reproach. When the Virginia Board of Medicine reviewed allegations similar to those underlying the Justice Department's case, it considered them serious enough to place him on probation (although it did not revoke his license). But Hurwitz's performance as a doctor is not the proper concern of federal drug agents and prosecutors.