Editorial: A Moral Fog http://stopthedrugwar.org/chronicle/382/moralfog.shtml Supporters of Dr. Hurwitz say that his decision to treat pain aggressively with opioids (narcotics), in the way he did, derived from an ethical principle applied to its logical conclusion. Physicians are obligated by their medical oath to properly treat pain, which in general means relieving to the best feasible extent. To deny a patient adequate pain treatment is "tantamount to torture," in Hurwitz' own words. If you treat pain, then some of the people seeking opioid prescriptions from you inevitably will turn out to be drug diverters or abusers. But it is unethical to punish actual pain patients -- to torture them by denying them medicine -- just because such people are out there. So Hurwitz chose to err on the side of prescribing for pain rather than not doing so. Because his ethics, and his interpretation of them, required him to do so, drug warriors notwithstanding. I agree with those ethics. It may be that reasonable people can believe that some degree of non-treatment of real patients should be risked in order to "balance" that priority with the priority of diversion control. I don't agree with that -- partly because denial of pain treatment really is torture, in my opinion -- and partly because I understand that the economics of the drug trade and prohibition renders diversion control ineffective regardless. If we can get to a point where a debate on the issue is taking place at that level, I'm not going to call anyone unreasonable who is rationally and sincerely trying to sort it out. But I agree with Hurwitz on this point. I also believe that Dr. Hurwitz is in fact innocent. No actual evidence was ever presented that he knew that any of his patients were diverting or abusing drugs. And as one of the few people in the world holding both a medical degree and a law degree, Hurwitz would have been readily able to earn millions of dollars per year; a financial motive for the crimes of which he was accused simply did not exist. But whether my faith in Dr. Hurwitz is on target or not, even that may ultimately only have secondary importance. There are two primary issues at stake. One is that it should have been doctors who decided whether Hurwitz had acted properly, but was not. Russell Portenoy, one of the world's top pain specialists, moved the issued forward this week by saying as much to the Los Angeles Times. The other is the sheer lack of ethics displayed by prosecutors, by their witnesses, and sadly even by the judge himself, Leonard Wexler. I have it on good authority that the prosecutor arguing for a life sentence yesterday lied repeatedly during his performance. The judge invoked a tape he claims he saw, but which was never entered into evidence, to justify harsh treatment of Hurwitz. For a variety of reasons this is not very plausible. But even if it turns out to be true, it would still conflict with the spirit (albeit not the letter, perhaps) of the Supreme Court's recent pronouncements on these issues. A witness for the prosecution, an addict in recovery, told of how he squandered his whole inheritance on drugs, conjuring the image of hundreds of thousands of dollars if not millions down the drain. He didn't mention, nor did anyone, that it was a mere $20,000, a lot to him perhaps but not a lot. Prosecutors leveraged their power to prosecute that individual and others, in order to get them to testify against Hurwitz in exchange for leniency -- a practice that courts have called bribery, though the Supreme Court ultimately did not uphold that. But the unreliability of testimony made under such duress is clear, and it is unethical to use it or allow it. Most seriously, the prosecution's medical witness gave testimony that six of the leading experts on pain treatment characterized as "misleading" and even "absurd" in a letter they sent to the judge. But that letter was never shown to the jurors. How dare Judge Wexler withhold exculpatory information of fundamental importance to the case from the jurors? It may be that sharing the letter with the jurors would have been unusual and something that courts don't like to do. But given who that letter came from and the nature of its content, I can conceive of no moral justification for withholding such information from jurors regardless of usual procedures. There must have been some appropriate way for Judge Wexler to get them that information, and that's what he ethically had to do, but did not do. The Hurwitz case is high profile. But such violations of decency occur all the time, in the countless more ordinary cases being thrust through the system every day. The courts have hence become institutions not to be respected, but rather feared and condemned. It is not good enough for the courts to do the right thing, to protect us from dangerous criminals and enact legitimate justice, but to do so only some of the time. The courts must make all reasonable efforts to maintain and enforce the highest moral and ethical standards at all times. But they lack the will, and perhaps the desire, to do so. The courts are in a moral fog, unable to discern right and wrong in their own actions, while sitting in judgment on others. It is time not only to oppose and criticize injustice, but to stand against it. Ethics requires that of us too. _______________________________________________________- 2. Feature: Chill Over Pain Management Deepens as Leading Specialist is Sentenced to 25 Years in Prison http://stopthedrugwar.org/chronicle/382/hurwitz.shtml The most closely watched in a growing procession of prosecutions of doctors involved in aggressive pain management with opioids came to an end in a suburban Washington, DC, federal courthouse Thursday as presiding federal circuit court Judge Leonard Wexler sentenced Northern Virginia pain specialist Dr. William Hurwitz to 25 years in prison as a drug dealer for his prescribing habits. The sentence was more than the 20-year mandatory minimum sentence, but less than the life sentence sought by prosecutors. At Thursday's hearing, Judge Wexler said that Hurwitz deserved more than the minimum sentence because he continued to flout the law even though he had opportunities to "reform" his behavior. Hurwitz, who appeared in court in his jail uniform, will be transferred to federal prison pending the outcome of his appeal. A pioneer in using large doses of opioids in pain management, Hurwitz closed his practice in 2002 after it became apparent he was a target of federal investigators. He was found guilty of multiple drug trafficking convictions in a contentious and controversial November trial that not only spotlighted his prescribing practices, but also highlighted the growing confrontation between the US Justice Department and doctors and pain patient advocates over the aggressive use of opioids in pain management. Prosecutors accused Dr. Hurwitz of improperly prescribing large amounts of opioids, mainly Oxycontin, to some two dozen of his more than 5,000 patients. Many of those patients, facing federal charges themselves, testified against Dr. Hurwitz, presumably as part of plea bargains to save themselves prison time. Other patients testified fervently that Dr. Hurwitz was a life-saver, not a drug dealer. Also key in building the case against Dr. Hurwitz was the testimony of Dr. Michael Ashburn, who told jurors Hurwitz prescribed in quantities far beyond accepted medical practice. That testimony has since been harshly challenged by experts in pain management, including six past presidents of the American Pain Society, who, in a January letter to Judge Wexler, pronounced themselves "stunned" at the "errors" in Ashburn's testimony. The letter was not shown to the jurors. It is not known whether Judge Wexler responded to the doctors. In a hearing described by some witnesses as highly emotional and by one as a theater of the grotesque, the aggrieved family members of Dr. Hurwitz' patients who died called for a lengthy sentence, while other patients and Hurwitz family members pled for leniency. "People on both sides spoke from the heart in a very passionate, powerful way," said Eric Sterling, executive director of the Criminal Justice Policy Foundation, who attended the hearing. "In the case of family members, they spoke of the irreplaceable loss of loved ones; in the case of the defendant, they spoke of the caring, compassionate qualities of the defendant." It was if people were describing Dr. Jekyll and Mr. Hyde, said Sterling. "I was really struck by the bifurcated presentation of the defendant. On the one hand, he was described as a compassionate professional, on the other, he was described as a careless, callous, remorseless person." That wasn't the only stark contrast Sterling noted. "Witnesses and people in the courtroom were weeping, but the judge seemed very businesslike. I was struck by the contrast between the passion and emotion of the witnesses and the coldness of the law and the court." If there were contrasts, there were also erasures. "There was no sense that the people who died had any responsibility for their own addictions, their own choices. It was the doctor's fault," said Sterling, speaking of family members who called for stiffer penalties for Hurwitz. "These people created a convoluted causation where the fact that their relatives were addicts and pleaded for drugs didn't matter. Doctors are not miracle workers; the most brilliant doctor can't save a self-destructive risk-taker from killing himself." Defense attorneys moved in vain to have Judge Wexler exercise "safety valve" rules that would have allowed him to reduce Hurwitz' sentence, but Wexler, who was the real star of the hearing, did add five years to the 20-year minimum based on an audio tape he claimed to have listened to that was never entered into evidence. And with a scolding of Hurwitz by Wexler for having squandered opportunities, the hearing was over and Hurwitz was hustled back to jail. "The sentence is about what we expected," said Siobhan Reynolds, head of the patients and doctors advocacy group the Pain Relief Network. "I am concerned for Billy. It's one thing to be on the outside and say it's what we expected, given the brutality of the system, but what must he be feeling now? There is a collective madness at work here," she told DRCNet. "This has been an injustice from start to finish," said Dr. Frank Fisher, himself the victim of an unfounded prosecution in California -- Fisher won his case -- and a consultant to the Hurwitz defense team. "Bill Hurwitz is a compassionate, well-intentioned doctor -- and those are exactly the qualities that put a physician at risk to be be prosecuted as a drug dealer in the current regulatory environment," he told DRCNet. The case is the most closely-watched yet in an escalating confrontation between the imperatives of pain management and those of drug abuse control. For the past decade, the Justice Department and the Drug Enforcement Administration (DEA) drug diversion control program, ironically funded by doctors' licensing fees, has spent tens of millions of dollars annually to investigate doctors it suspects of improperly prescribing prescription drugs. Equally ironically, the diversion control fund also includes money from an asset forfeiture kitty that includes goods once belonging to doctors prosecuted by the DEA. With those funds, the DEA monitors the prescription writing of all doctors. Those who prescribe large doses of drugs such as Oxycontin are flagged for investigation. Typically, the feds find former or current patients who are abusing or selling prescribed drugs, charge them with federal crimes, then plea bargain with them to get them to testify against the targeted doctor. At trial, prosecution expert witnesses testify that the prescribing was outside the bounds of accepted medical practice, while defense witnesses testify it was not. Jurors, who may or may not have a firm grasp on the medical science involved, tend to come down on the side of prosecutors. While firm numbers are hard to come by, dozens -- if not hundreds -- of doctors have been tried, convicted, and sentenced as drug dealers in recent years, with the pace accelerating since drug czar John Walters declared prescription drug abuse a national menace last year. According to Dr. Joel Hochman, director of the National Foundation for the Treatment of Pain, the DEA has investigated some 1,800 doctors nationwide in the last three years, 1,200 of whom lost their licenses. The Justice Department is engaged "in a fruitless and bizarre effort to curtail the use of drugs, and has begun to eat its citizens and physicians," Hochman told the Los Angeles Times Wednesday. While doctors and pain patient advocates said Hurwitz' conviction and sentencing will only deepen the chill felt throughout pain management circles, Judge Wexler attempted to deflect physicians' concerns that they could be next, said Sterling. "The judge read a letter from a Florida pain management specialist who said he'd had a handful of patients fool him over the years and asked if he should now fear being prosecuted," Sterling related. "The judge said no, Hurwitz' practice was different. Hurwitz knew his patients were either getting high or selling the drugs or both, or else he was willfully blind. Honest doctors have nothing to worry about, the judge said." Critics weren't buying that argument. "These cases do have an impact," said Dr. Fisher, "and the impact from even a single case can be enormous. I was arrested in 1999, and the following year California had the lowest per capita Oxycontin prescribing in the country. I cannot imagine that my arrest did not influence that. Likewise, when Dr. James Graves got a 60-year prison sentence in Florida, all of a sudden there were no new pain clinics opening up, there were doctors closing their doors or throwing out their patients. Since then, it has become more and more difficult to find anyone who will treat a chronic pain patient." "We are already in a crisis," said Reynolds. "We get four or five emails every day from people with severe pain -- cancer, lupus, surgeries -- being cut off by their doctors for the slightest infraction of the rules," she said, referring to elaborate protocols doctors foist upon patients in hopes of avoiding trouble with the DEA. "The doctors are frightened, and the result is zero tolerance for human frailty. Doctors are afraid any attempt to ameliorate this zero tolerance will result in them being charged as criminals. Doctors have become extraordinarily harsh and brutal; people who were previously able to work are now bed-ridden. This has been going on for years, and it's only getting worse. Almost no one I know is getting decent pain treatment." Some advocates accused the federal government of bringing phony cases and using deceptive methods to prosecute them. "In the Hurwitz case, and in all the other trials I have observed, the government has never produced evidence that the accused doctor intended to divert drugs outside his professional practice or to profit from any such diversion," said Reynolds. "In the Hurwitz case, government lawyers have said that his conviction should stand even if he wrote the prescriptions in good faith. No wonder doctors all over America are putting down their pens." "Throughout the US, physicians are being threatened, impoverished, de-licensed and imprisoned for prescribing in good faith with the intention of relieving pain," said Dr. Jane Orient of the Association of American Physicians and Surgeons. "Law enforcement agents are using deceitful tactics to snare doctors, and prosecutors manipulate the legal system to frighten doctors who might be willing to testify on behalf of the wrongly accused doctors." "We have a real legitimate worry that there is going to be greater reluctance to prescribe pain medication and as a consequence more under-treatment of chronic pain," Dr. Russell Portenoy, chairman of the pain medicine department at Beth Israel Medical Center in New York, told the Times. With an estimated 50 million Americans suffered from under-treated chronic pain and doctors now running scared, the clash between law enforcement and medicine is bound to deepen. Doctors and pain patients are now beginning to pick up support from some unexpected places, including at least 30 state attorneys general, who, in a January letter to DEA administrator Karen Tandy, criticized the agency for improperly emphasizing stopping drug diversion at the expense of legitimate pain treatments. "As attorneys general who have worked to remove barriers to quality care for citizens of our states at the end of life, we have learned that adequate pain management is often difficult to obtain because many physicians fear investigations and enforcement actions if they prescribe adequate levels of opioids," the letter said. Dr. William Hurwitz is headed for prison, at least until his appeals are heard, federal prosecutors have scored another "victory" in their never-ending hunt for "dope dealer" doctors, physicians are running scared, and patients are finding it more and more difficult to obtain adequate care for chronic pain. But with the quality of life of some 50 million Americans at stake, this is a battle that is far from over.
