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.

This comment from a doctor to Tierney’s post captures the dilemmas this dumb campaign imposes on pain specialists:

The Hurwitz persecution scares the bejabbers out of me. If I refuse to treat pain adequately that is a criminal offense. If I over treat pain that is a criminal offense. If I cannot tell a smooth, practiced, professional liar from real pain that is a criminal offense. I am expected to be all things to all people, omnipotent and infallible – and if I fail I will be stripped of my license or sent to prison.

Just recently I received a phone call that one of my patients was selling my narcotic prescription on the street. Was this real, a crank call, or a sting operation by the prosecutor? My only avenue of survival was to immediately file a complaint against the patient with BAYONET (a narcotics strike force). Welcome to 1984, Hurwitz jurors. So now that you have forced me to survive by turning people in to the secret police, how do you feel about coming to me and discussing your personal issues?

Turning the doctor-patient relationship into an adversarial relationship is yet another often-overlooked by-product of the painkiller hysteria.

By the way, where is the American Medical Association on all of this? Aren’t they supposed to be advocates for doctors? These prosecutions are an assault on some of the most sacred tenants of the medical profession. Where’s the outrage.

Oh yes. The AMA is too busy putting out bogus “studies” about how college students like to party and drink on spring break. The press release for that fraudulent exercise in neoprohibition still sits on the AMA website, by the way. Without a correction.

This entry was posted on Monday, April 30th, 2007 at 12:50 pm by Radley Balko and is filed under Pain Treatment. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.