I have to admit I'm impressed by the achievement of the federal prosecutors who call McLean, Virginia, pain doctor William Hurwitz "a major and deadly drug dealer." Although the evidence they presented in his trial made it clear Hurwitz was not a drug trafficker, they still managed to convict him of drug trafficking.
The prosecutors did not dispute that Hurwitz had helped hundreds of patients recover their lives by prescribing the high doses of 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 he prescribed, selling them on the black market, or both.
The prosecutors did not claim Hurwitz, who faces a possible life sentence, 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 patients who were faking or exaggerating their pain.
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, not surprisingly, ambiguous at best, leaving plenty of room for reasonable doubt. Yet the prosecutors got the jury to overlook the obvious weaknesses in their case and convict Hurwitz, in essence, of trusting his patients too much.
That verdict sends a clear message to doctors that it's better to err on the side of suspicion. Knowing they could be prosecuted for believing a patient who turned out to be an addict or a dealer, doctors will be even less inclined to take the risk, compounding the already appalling problem of people in pain who suffer needlessly because physicians are afraid to help them.
Hurwitz was not afraid, which is why desperate patients flocked to him. Inevitably, he also attracted people who sought to take advantage of his compassion. Yet none of the surreptitiously recorded conversations with patients-turned-informants that the prosecution presented included any acknowledgment of the conspiracy Hurwitz supposedly led.
To the contrary, the testimony of former patients convicted of drug dealing tended 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. One former patient said Hurwitz's concern for his patients was his vulnerability; another 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, defense attorney Patrick Hallinan asked, "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 naiveté" 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 even if they misbehaved.
Prosecutors repeatedly invited the jurors to judge Hurwitz's performance as a doctor, suggesting he was arrogant, negligent, and indifferent to his patients. That portrait was belied by the testimony of patients who are eternally grateful for Hurwitz's courageous compassion.
More to the point, the jury was not supposed to determine whether Hurwitz was a good doctor; that's an issue for the state medical board. The jury was supposed to determine whether Hurwitz intentionally fed the black market in opioids. Since the evidence indicated that he prescribed in good faith, with the intent of treating pain, convicting him of drug trafficking sets a chilling precedent.
Writing in USA Today during Hurwitz's trial, Karen Tandy, head of the Drug Enforcement Administration, said "doctors acting in good faith and in accordance with established medical norms should remain confident in their ability to prescribe appropriate pain medications." Notice that "good faith" is not enough to keep the DEA at bay. Doctors also have to prescribe "in accordance with established medical norms," as determined by the DEA, and prescribe only those medications and dosages the DEA deems "appropriate."
With reassurances like that, who needs warnings?