Pill Mill Bill

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Yesterday I attended the closing arguments in the federal drug trafficking trial of McLean, Virginia, pain doctor William Hurwitz. Leaving aside my views on drug policy– in particular, regarding the conflict between drug control and pain control–it seems clear to me that the government has not met its burden of proving that Hurwitz deliberately facilitated the illegal distribution of narcotics.

The prosecution argues that Hurwitz, who faces a possible life sentence, had a tacit agreement with patients who were misusing and/or selling the drugs he prescribed not to ask too many questions and to look the other way when there were signs of abuse or diversion. "The defendant repeatedly and intentionally covered his eyes and ears," said Assistant U.S. Attorney Gene Rossi. He ignored the "red flags and loud gongs" that should have led him to stop treating certain patients. It was "conspiracy of silence," carried out by "a wink and a nod."

The problem with this theory is that the evidence supporting it is necessarily ambiguous, leaving plenty of room for reasonable doubt. None of the surreptitiously recorded conversations with patients-turned-informants that the prosecution has presented include a clear acknowledgment or reference to the conspiracy that Hurwitz supposedly led. In fact, these conversations, Hurwitz's records, and his former patients' testimony tend to confirm his defense: that he was tricked by "predators" who always knew the right thing to say to get more drugs and who bragged about how they had won his trust. Conceding that Hurwitz may have displayed "a degree of naivete" and "even foolishness" in accepting their stories, defense attorney Patrick Hallinan called him "the perfect mark for these people," because he was dedicated to helping people in pain and reluctant to cut them off even if, say, they tested positive for illegal drugs or failed to follow his dosage instructions.

If there was indeed a conspiracy, Hallinan asked, "Why would you have to lie?" 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"? And if he was engaged in drug trafficking, asked Hallinan, "Where's the split?" Although some patients made a lot of money by selling the opioids he prescribed, Hurwitz never saw a dime of it. Unlike the typical "pill mill" doctor, he did not even charge by the prescription, or charge more for larger amounts. According to the prosecution, his profits consisted entirely of fees from his patients–in other words, his income as a doctor.

Again and again, Rossi tried to sway the jury by suggesting that Hurwitz was a bad doctor: arrogant, negligent, indifferent to his patients. This portrait is belied by the testimony of patients who are eternally grateful to Hurwitz for risking legal trouble by treating their chronic pain when no one else would and for treating them with compassion instead of suspicion. The government concedes that many of Hurwitz's patients were legitimate, and Hallinan estimates that only 5 to 10 percent were abusing or selling drugs.

More to the point, as Hallinan emphasized, the jury is not supposed to determine whether Hurwitz is a good doctor; that's an issue for the state medical board (and the civil courts, in the case of a malpractice suit). The jury is supposed to determine whether he intentionally fed the black market in opioids. If he was prescribing in good faith–that is, with the intent of treating pain–he cannot be convicted of drug trafficking, regardless of how the jurors view his competence and care as a doctor.

The jurors are supposed to receive their charge today. If they remember what their job is, they will acquit him.

NEXT: The Outsiders

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  1. this is a classic example of abandoning the rule of law. there is no objective standard, honestly to determine what constitutes adequeate pain relief. Even hardened drug warrios admit undertreatment of pain is a national problem. The way these prosecutions seem to work is to find a doctor who prescribed drugs that led to a bad social outcome and scare the hell out of him. There is no doubt that some patients are doctor shopping(but hey some addicts have legitimate pain relief needs as well, whatever that means) but without assuming that everyone is an addict or a potential addict, there is no way to get rid of this problem. so long as we refuse to acknowledge the role of personal responsibility in matters of drug intake, we will have fiascos such as this. Oh well it is kind of interesting to watch

  2. He’s going to the pokey.

  3. Based on the headlines in a Google News search on ‘Hurwitz’, the Court of Journalists (or Sensationalist Newspapers, if you prefer) is against him. All loaded terms, defensiveness, profiteering:

    “Va. Doctor Defends Prescribing Pain Pills”

    “Prosecutors: Arrogance drove doctor accused of drug trafficking”

    “Pain doctor earned about $1 million in three years”

    I guess Reason and DrugWarRant are about the only place you’ll see headlines like ‘Government persecutes caring doctor.’

  4. The drug war is over anyways in the next ten years. The will be able to splice dna from drug producing plants (opium, marijuana and coca) and put those genes in any plant, or even yeast. Make your own cocaine at home, nothing is gonna stop this….

  5. I hate to join the gloomsters here, but it seems we still have a few years of work ahead of us calming the mass hysteria about the word, “addiction.”

  6. Phillip,
    Is cyberspace beyond the reach of government attempts at regulation?
    If not, then neither is what you’re suggesting.

  7. This portrait is belied by the testimony of patients who are eternally grateful to Hurwitz for risking legal trouble by treating their chronic pain when no one else would and for treating them with compassion instead of suspicion.

    So the WOD has now created an environment where only naive and foolish doctors are willing to treat chronic pain.

  8. The drug war is over anyways in the next ten years

    .. I recall making a similar statement back around 1970 .. obviously wasn’t true then, not gonna be true now and I doubt it will be true in another 30 years ..

  9. A possible life-sentence?

    Damn, that’s harsh.

    I could see taking his medical license away IF he did something wrong, but geez…

  10. Why do we have people like this Rossi person working in our government? Isn’t he obviously evil? Every time I see some evil bastard working for the government I ask myself: Could life be worse without a government? Anarchy scares me; but it gets less scary every day.

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