Things are not always what they seem.  Before the U.S. Court of Appeals overturned Dr. William E.  Hurwitz's 50 convictions and 25-year prison sentence, remanding the case back to federal court in Alexandria, Judge Leonie M. Brinkema thought the amount of drugs prescribed by the McLean pain doctor was "absolutely crazy."

Hurwitz prescribed high doses of opioid pain medication for patients who sometimes traveled across the country to see him because they were unable to get pain relief anywhere else.

The 1,879,677 pills Hurwitz prescribed to just 24 of his patients led to drug addiction, drug dependency and the illegal sale of pills.  "He was an island unto himself," said Gene Rossi, Assistant U.S.  Attorney. No other doctor in history issued prescriptions like Hurwitz, Rossi said during both of Hurwitz's trials in 2004 and April 2007.

But two defense experts, chronic pain doctors James N. Campbell of Johns Hopkins University and Russell K. Portenoy of Beth Israel
Medical Center in New York,  "turned my thinking around," Brinkema said before sentencing Hurwitz last Friday, July 12.  Brinkema, who presided over Hurwitz's retrial, sentenced him to 57 months, the minimum sentence under federal guidelines.

"The overwhelming number of patients in the practice were legitimate," Brinkema said, "and he was trying to treat them with a type of medicine that clearly was controversial."

HURWITZ HAS been in prison since his first trial in 2004, but was granted a new trial when the U.S. Court of Appeals ruled that Judge Leonard D. Wexler erred when he refused to allow Hurwitz to argue that he acted in "good faith" when treating his "problem patients."

More than 15 drug addicts and drug dealers testified during both trials about how their use of Hurwitz's prescriptions led to addiction, drug sales, prison terms and misery. But unlike Hurwitz's first trial when

Judge Wexler limited Hurwitz's "success" stories, many patients testified in April how Hurwitz "saved" their lives.

"There is no evidence that the defendant targeted any of the victims.  Rather, the victims were targeting the doctor," Judge Brinkema said.
Brinkema called the case an "unusual" drug case. "Clearly there is no evidence that the doctor did this for financial gain."

A federal jury spent seven days deliberating after the four-week trial in April before finding Hurwitz guilty of 16 counts of drug trafficking and not guilty of 17 counts. Brinkema dismissed the final 12 counts the jury did not reach consensus on.

Brinkema dismissed the most serious charges against the pain doctor, including drug trafficking resulting in death and serious bodily injury.

Those charges carried mandatory minimum sentences of 20-years each. After hearing the government's portion of the case, Brinkema said those charges amounted to malpractice claims, and did not belong in a criminal court.

Dr. William Hurwitz was sentenced Friday to five years in prison for being a drug dealer, not a pain doctor. That's an improvement on the 25 year sentence he received at his first trial. But it's still unclear to me how the judge could sentence him to any time at all, given that the prosecution did not prove that he intentionally sold drugs.

As noted here when he was re-convicted, New York Times columnist John Tierney interviewed three of the jurors after the second trial. One said "I didn't see him getting anything financial out of it. Many of his patients weren't even paying him. He had to believe that he was just treating them for pain."

Said another, "There was no financial benefit to him that was very evident to us … it was a really hard case for all of us. I think that Dr. Hurwitz really did care about his patients."

So why did they agree that he was guilty of intentionally selling narcotics — as DEA head Karen Tandy said to the Washington Post, "Dr. Hurwitz was no different from a cocaine or heroin dealer peddling poison on the street corner"? They believed he'd "fallen down on the job" because he should have known that some of his patients were addicts and some were re-selling their drugs.

Now, how is that comparable to street corner drug dealing? Hurwitz did not profit additionally by giving large doses of opioids to his patients who were addicts or dealers. He didn't charge by the pill, so he had no financial incentive to prescribe high doses.

Charging per dose is clearly drug dealing, not medicine: but this wasn't going on. In contrast, Hurwitz treated the patients who turned out to be addicts and/or dealers no differently from his other patients — ordering tests, doing examinations, requiring urine screens.

Although the jury believed that Hurwitz missed "red flags" that should have told him that these patients were not what they seemed, even if he did, it is not illegal to treat addicts or dealers who have demonstrable pain with opioids. It is only illegal to sell them drugs so that they can get high or to be re-sold– but no evidence was presented that showed this beyond a reasonable doubt.

The judge even acknowledged in her sentencing statement that the doses Hurwitz prescribed were legitimate medicine– that, as she put it, "The mere prescription of huge quantities of opioids doesn't mean anything." So how can she let a conviction stand in which one of the essential elements of the crime — mens rea, criminal intent — is not present?

Some advocates for pain patients and physicians are framing this as a victory, saying that public understanding of the problem has increased. And Pain Relief Network founder Siobhan Reynolds did get to testify before Congress this week in hearings related to oversight of the DEA, which show that Democrats are finally starting to realize that the DEA is compromising medical practice.

But as long as a doctor can be an accidental drug dealer — a trafficker without knowing it– pain patients are going to suffer.

http://www.huffingtonpost.com/maia-szalavitz/
the-accidental-drug-deale_b_56430.html

Dr. William Hurwitz was sentenced Friday to 57 months in prison for prescribing opioids. That’s more time than his supporters and some of the jurors were hoping for, but it’s still a major victory for him — and for the scientists who testified at the trial. The prosecutors had asked for a life sentence.

The sentence is a distinct reduction from the 25-year sentence Dr. Hurwitz was serving after being convicted in 2004 on drug trafficking and other charges. (The conviction was overturned and resulted in a retrial, at which he was convicted of 16 counts of drug trafficking.) One of Dr. Hurwitz’s lawyers, Richard Sauber, said that, considering the time already served, Dr. Hurwitz could be free in 17 months.

The good news, for doctors worried about the Drug Enforcement Administration’s campaign against opioids, is that U.S. District Judge Leonie Brinkema paid attention to the testimony of scientists instead of the 1,600-pill argument of the prosecution and Karen Tandy, the head of the D.E.A. As the Associated Press reports:

    Brinkema said she had read news accounts of the first trial and had seen some of the massive prescriptions Hurwitz had given out, including one patient who was given 1,600 pills a day.

    ‘’The amount of drugs Dr. Hurwitz prescribed struck me as absolutely crazy,'’ the judge said.

    But after hearing testimony from both sides, ‘’I totally turned around on that issue,'’ Brinkema said. ‘’The mere prescription of huge quantities of opioids doesn’t mean anything.'’

The bad news for other pain-management doctors is that they can’t count on getting such a thoughtful judge, or getting the support of experts and lawyers like the ones who defended Dr. Hurwitz. And, of course, despite all the relative advantages he had over other doctors, Dr. Hurwitz still received a 57-month sentence.

While there was no evidence that Dr. Hurwitz was profiting from the resale of his prescriptions — and the jurors I interviewed said they didn’t think he intended the drugs to be resold — he will still spend more time in prison than almost all the patients who admitting lying to him and reselling the drugs. Thanks to the deals they made to cooperate with prosecutors, seven of the nine patients got sentences ranging from 10 to 39 months. Only two got longer sentences than 57 months — and one of them, who got 72 months, was also guilty of armed robbery and arson.

I’ll leave you with a few questions:

Why should a doctor trying to treating patients in pain serve more time in prison than a patient who dupes him and intentionally violates the law by reselling the drugs?

Will Judge Brinkema’s words and action today discourage narcotics agents and prosecutors from targeting doctors who prescribe large quantities of opioids?

Will the D.E.A.’s policies change now that Democrats control Congress? At a hearing this week on the hearing on the D.E.A.’s regulation of medicine, Karen Tandy and other D.E.A. officials got an unusually tough grilling from members of House Judiciary Committe like Representative Jerrold Nadler of New York. The legislators asked awkward questions about the D.E.A.’s obstruction of research into medical marijuana and its policies on opioids. They invited testimony from John Flannery, a lawyer who’s been defending chronic-pain doctors and the author of “Pain in America.” They heard Siobhan Reynolds, the president of the Pain Relief Network, testify that the D.E.A. is an out-of-control agency “that has demonstrated no respect for the rights of ill Americans, nor for the rule of law itself.”

It may seem naive to expect any major change in the D.E.A.’s bureaucratic imperatives. But let the record show one shift by its chief: Today, unlike the day when Dr. Hurwitz was sentenced to 25 years in prison, Karen Tandy did not celebrate by posing for pictures with a bag of 1,600 pills.

UPDATE: I just heard from one of the three jurors in the Hurwitz trial whom I previously interviewed. She spoke with the other two and said they share the following reaction: “As we had previously said, we hoped for a light sentence and had complete confidence in Judge Brinkema. We are pleased with the outcome.”

http://tierneylab.blogs.nytimes.com/2007/07/13/
a-win-for-dr-hurwitz-a-loss-for-the-pill-counters/