Hurwitz Convicted

Dr. William Hurwitz was convicted over the weekend for a second time on drug trafficking charges. John Tierney has been doing some tremendous reporting from the trial. After the verdict, he has interviewed three of the jurors, and writes this report :

They said that the jury considered Dr. William Hurwitz to be a doctor dedicated to treating pain who didn't intentionally prescribe drugs to be resold or abused. They said he didn't appear to benefit financially from his patients' drug dealing and that he wasn't what they considered a conventional drug trafficker.

So why did find him guilty of "knowingly and intentionally" distributing drugs "outside the bounds of medical practice" and engaging in drug trafficking "as conventionally understood"? After attending the trial and talking to the jurors, I can suggest two possible answers:

1. The jurors were confused by the law.
2. The law is a ass (to quote Mr. Bumble from "Oliver Twist").

I can't blame the jurors for being confused, because that's the norm in trials of pain-management doctors. The standard prosecution strategy is to charge the doctor on so many counts and introduce so much evidence that the jurors assume something criminal must have happened. Their natural impulse, after listening to weeks of arguments, is to look for a compromise by digging into the mountain of medical minutiae – and getting in so deep that they lose sight of the big picture.

Tierney finds that the jurors essentially convicted Hurwitz of not scrutinizing his patients enough. None of the jurors he talked to claim to know what the legal standard "outside the bounds of medical practice" actually means. Instead, they told him, "we just had to go with our gut."

The ramifications of Hurwitz's conviction on the continuing treatment of pain are ominous. If Hurwitz can go to prison for not being suspicious enough of his patients, the message to pain specialists is clear: Err on the side of mistrust, suspicion, and undetreatment, or risk going to prison.

Comments

[SugarFree]

I think every prosecutor of pain management doctors should be shot in the upper left leg at close range, shattering the upper femur into 17 distinct and easy to count pieces when X-rayed, then be deliberately under-dosed for the pain during two years of surgical repair and rehabilitation.

[Andrew]

I knew people were getting too excited near the end of the trial. I knew this was going to happen.

Every time I say "I give up", something worse happens. So I don't even know what to think anymore.

[joe]

Terrible, awful, shameful...

This is madness.

[Seamus]

What SugarFree said.

[Dave W.]

Can't they make some kind of a system wherein the doctor can copy law enforcement on prescriptions above certain thresholds and thereby insulate her or himself from criminal liability?

I understand that patient privacy concerns are implicated, but it seems to me like patients that are truly in pain will consent, no problem.

I mean, once law enforcement knows that patient X is getting some super-large amount of painkillers, then law enforcement, instead of the doctor, can make sure the patient isn't selling them on the black market. If anyone needs to be doing that, it seems like a job for a cop, rather than a doctor.

[bill]

One problem with Dave W's suggestion, I think, is that these prosecutors would then go after the patients for *needing* the pain relief. After all, if God had wanted them to live pain free, well, they would. Or something equally lame.

[Dave W.]

One problem with Dave W's suggestion, I think, is that these prosecutors would then go after the patients for *needing* the pain relief.

On what charge? If you have a valid prescription and aren't letting anyone else have access to your meds, then there is no charge.

If you gave someone like Richard Paey the choice between letting doctors copy law enforcement on his prescriptions (and probably opening himself up to searches and other police scrutiny) or else having to forge prescriptions (as he was forced to do), then I think he would choose the police scrutiny. remember, a guy like Paey wouldn't have trouble getting a prescription if doctors could shield themselves from criminal liability in the manner I have proposed.

[tarran]

Dave,

Paey did not have to "forge" his prescriptions. Paey's doctor perjured himself to avoid going to jail. See, the feds were going to lock up someone, and the doctor flipped.

This whole discussion is so obscene. It's nobody's business who takes what medicines.

[SugarFree]

on what charge?

They seemed to have no problem coming up with plenty for Hurwitz. Hurwitz already had a shield from criminal liability and they choose to go around it.

The flaw in your plan, Dave W., is that you are assuming that the police and prosecutors would be honest actors in this scheme. But the problem you are trying to fix lies with the fact that the police and prosecutors are not being honest actors as is. You can't fix an abuse of power by giving the abusers more information that will enable them to further abuse that power.

[David]

I'm sure there's a charge for "fraudulent possession of a schedule 2 narcotic" that could be made any time.

I agree with that it would be better than prosecuting pain doctors, although not as ideal as it being nobody's business by the patient.

[tarran]

My brother is a lawyer, and based on his experiences with jury trials, I am not surprised by this. Disappointed, but not surprised. Most people have no clue what "innocent until proven guilty" means, or even the barest conception of human rights.

[Thomas Paine\'s Goiter]

This is disgusting. After some passably decent news on the Atlanta PD, we get smacked back by this.

[Dave W.]

Paey did not have to "forge" his prescriptions. Paey's doctor perjured himself to avoid going to jail. See, the feds were going to lock up someone, and the doctor flipped.

Originally I wrote the post to explain the full circumstances of Paey's prescriptions, and why they were not clearly legal prescriptions, and how they got the new Jersey doctor to "flip."

Then I just changed it to say "forged" because that captures the gist of the thing.

The point is that if any old local doctor in Florida could have been persuaded to write Paey his scrip, then he wouldn't have had to continue fooling around with blank prescription forms (or whatever, and I don't really care about the details) from out of state.

Under my proposal, any old doctor in Florida could have been persuaded to meet Paey's needs.

To respond to SugarFree:

If Paey and a Florida doctor had filed copies of his prescription forms with the police, then I really don't think he would have been prosecuted. But, I guess we will never know for sure unless we get my proposed reform going. Personally, I think people with either large amounts of legal narcotics and/or legal guns should be a lot more easily searched by police just to make sure that they are securing their dangerous things appropriately. What is a "reasonable" search for someone with scads of OxyContin should be a much lower threshold than a legal search for someone who doesn't have that, at least so long as OxyContin is prescription only. If you are one of those special people that needs lots of drugs, then you should be prepared for home inspection. You should consent to it in advance. I don't see this so much as a slippery slope, but as a way to make doctors and society more comfortable with prescribing what should be prescribed.

[SugarFree]

Dave W.,

Once again, I would point out that you are trying to fix an abuse of power by increasing the scope of that power. What you are proposing is little more than "If you have nothing to hide, then why can't we search you?"

It seems the answer should lie in decreasing the police's power to prosecute legal use rather than abolishing doctor/patient privacy for certain patients. If a doctor in good standing and with good faith decides a patient should have these drugs then it's over, the police should be restrained from having any further interest.

You are still relying on the police being honest actors. They have proven themselves incapable of that over and over again. If they have a list of people with "unusual" amounts of narcotics legally, they will over-scrutinize those people for easy arrests.

They don't want people to have pain medication even when they are in pain. If they did, they wouldn't prosecute these doctors in the first place. They know the amount of these drugs being sold illegally coming from crooked doctors and patients is vanishingly tiny compared to re-importation, manufacture, and theft. They just know they might get shot if they go after those people. Doctors? not so much.

[Dave W.]

Once again, I would point out that you are trying to fix an abuse of power by increasing the scope of that power. What you are proposing is little more than "If you have nothing to hide, then why can't we search you?"

I would state it as:

"If we let you have dangerous stuff, then you let us watch you more closely."

When it comes to reasonability of searches, one size does not fit all. Making it easier to search people with dangerous stuff makes it less likely that I, a guy without dangerous stuff, will be searched.

When people want to both own dangerous stuff, and at the same time want not to be watched, they are trying to have it both ways. Results start getting crazy -- which is how I would characterize both the Hurwitz and Paey cases.

[SugarFree]

Dave W.,

They are pills, not WMD.

I don't trust the police, you seem to. This not an impasse we will ever resolve.

[Anonymo the Anonymous]

"If we let you have dangerous stuff..."

That says it all. Thanks for putting us children of the benevolent state in our place.

For a commentor on a site called Reason...

[R C Dean]

a site called Reason...

Drink!

[Robert]

I've been trying to figure out a solution like Dave W.'s for some time. Seems the big problem here is not abuse of power, but uncertainty. If there were a way to pre-clear dispensing of narcotics, that would take away the uncertainty and allow more appropriate drugging.

I think I wrote here a while ago that this is not such a problem in countries where medical care is not a matter of private enterprise, because if the gov't itself is handing out the drugs, they can't blame you for taking them. Someone responded that the problem is less that than the culture in the USA, but I don't think people in the USA are much more sadistic than people elsewhere.

But they did throw out the more serious charges of those Hurwitz faced, didn't they? ISTR they went after him for manslaughter and higher degree trafficking charges that ultimately didn't get sent to this jury. So the worst case scenario didn't come about.

[Dave W.]

That says it all.

If it were up to me, every drug, including whatever this doctor prescribed, would be freely available without a prescription (albeit with better labelling and criminal sanctions for carelessness re unauthorized access).

However, since there are people out there I need to compromise with, I am trying to suggest more sensible compromises than what we have now.

I know that those of you brought up in a rarefied atmosphere of Rand and gun rights have a problem with the very idea of compromise. That is why you have traditionally been so politically ineffective. Time to shift paradigms. The old one just ain't working.

[violent_k]

Dave W.,
Let's say a persons wife signs the consent form you propose. When the police stop over for a look around, hubby is in the den doing bong hits. Think he's going to jail? I do. What if the police stop by and no one is home? Are they permitted to enter?

Besides that, what are they going to check? Are they going to count your pills and take a guess as to how many you took and how many you sold on the black market?

[NightFire]

It's even worse than any of you think. If you're a drug addict, the Feds don't turn a hair at a doctor prescribing 24, even 30 methadone tablets a day for you. But if you suffer chronic, debilitating, unending pain, they conduct an investigation if you get more than 4 a day.

Everyone going for a medical license should be injected with the venom of a frog I think it is, which causes excruciating pain, but, unless you have a weak heart or mind, does no permanent damage. A week of such torture would teach them all a thing or two, and the DEA and FDA enforcers should be subjected to it as well.

[Dave W.]

Let's say a persons wife signs the consent form you propose. When the police stop over for a look around, hubby is in the den doing bong hits. Think he's going to jail? I do. What if the police stop by and no one is home? Are they permitted to enter?

Generally speaking, these details would need to be worked out. I sometimes write audit & inspections clauses in contracts leases between businesses. Let me assure you that these are never unlimited in scope, although often they provide for substantial rights of inspection. I imagine the "deal" between the state and heavy users of OxyContin could work the same way. Assuming that we could step out of this Isralis versus Palestinians mindset about drug regulation for a sec.

The pot example is a bad one because that should be legal without a prescription for the same reasons alcohol is. But let's assume that society, while ready to accept my compromise proposal on Oxycontin still demands continued prohibition of pot. Under those conditions my answer is thus:

The couple better make a choice between wife's narcotics and husband's pot. Maybe the answer is separate residences -- one to keep and take the prescribed narcotics at and the other one to smoke weed at. Maybe the answer is that hubby gives up pot until it can be legalized (as it should). Any answer, along these lines, is better than the current situation where the wife cannot get her prescription filled because no doctor will touch it.

[Robert]

One possibility I thought of would be second opinions for narcotics. Nobody would have to get one, but if you did, it would be that much more evidence that your need for that quantity of those drugs was legitimate. Not only would the patient be covered, but the doctors would be covering each other by this confirmation.