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Dr. William Hurwitz Granted New Trial


Federal Appeals Court Says Defense Should Have Been Allowed To Argue "Good Faith"

Dr. William Hurwitz, the Northern Virginia physician whose case became a cause célèbre in pain management and drug policy reform circles, was granted a new trial by the 4th Circuit Court of Appeals in August 2006. The New York Sun reported on Aug. 24, 2006 ("Doctor In VA Drug-Trafficking Case Granted New Trial") that "Medical groups are hailing a federal appeals court's decision to grant a new trial to a Virginia doctor accused of drug trafficking for prescribing large quantities of narcotics to his patients. The 4th Circuit Court of Appeals ruled Tuesday that jurors at the 2004 trial of Dr. William Hurwitz of McLean, Va., were improperly prevented from considering whether he acted in good faith. He was convicted on 50 counts and sentenced to 25 years in prison. An appeals court judge, William Traxler Jr., wrote that the jury should have been told that Dr. Hurwitz committed no crime if he had a reasonable, good-faith belief that the prescriptions were appropriate medical care. 'A doctor's good faith in treating his patients is relevant to the jury's determination of whether the doctor acted beyond the bounds of legitimate medical practice,' Judge Traxler said. 'The district court effectively deprived the jury of the opportunity to consider Hurwitz's defense.'"

According to the Sun, "Prosecutors argued that Dr. Hurwitz wildly overprescribed pain-killing drugs such as OxyContin and Dilaudid, giving one patient prescriptions for more than half a million pills over a 40-month period. The government also said there was evidence the physician suspected that some of his patients were selling a portion of their prescribed medicines. Defense attorneys contended that Dr. Hurwitz acted within professional standards and that patients suffering from long-term pain can require extremely high doses of narcotics because smaller doses often become ineffective over time. The defense acknowledged that Dr. Hurwitz had been disciplined by state medical boards, but said those agencies "were back in the Stone Age.""

The Sun noted that " A past president of the American Academy of Pain Medicine, Dr. Scott Fishman, said his group has not formally endorsed or rejected Dr. Hurwitz's methods, but filed an amicus brief because the court proceedings put all doctors in jeopardy. "On the surface, this is a case that appears to be an issue around a doctor who is at the extreme of practice, if not over the line," Dr. Fishman, a professor at the University of California at Davis, said. "It was about whether he got a fair trial. We felt if we didn't stand up in this case, future legitimate appropriately prescribing physicians could be prosecuted as drug dealers. We're trying to protect patients." A libertarian-oriented physicians group, the American Association of Physicians and Surgeons, offered a more robust defense of Dr. Hurwitz. "Billy Hurwitz is an accomplished physician at the cutting edge of medicine, trying to help his patients," a lawyer for the group, Andrew Schlafly of Far Hills, N.J., said. "This guy published articles in medical journals. He had a medical approach." Mr. Schlafly said federal prosecutors overreached by using the criminal justice system to control doctors. "The federal government has no business mischaracterizing a doctor as a drug dealer and interfering in the states' regulation of the practice of medicine," the lawyer said."

A copy of the appeals court's decision can be downloaded by clicking here or from the CSDP site.

The Hurwitz case was allegedly what prompted the DEA to withdraw its guidelines for pain management prescribing practices, which it had issued a few months before the doctor's conviction. The Washington Post reported on Nov. 30, 2004 ("New DEA Statement Has Pain Doctors More Fearful") that "Advocates for aggressive pain management said the DEA's abrupt turnaround appeared to have been triggered when defense lawyers tried to introduce the earlier pain guidelines in the trial of Hurwitz, the McLean doctor, in late September. The DEA took the document off its Web site soon after. About two weeks later, U.S. Attorney Paul J. McNulty, who is prosecuting Hurwitz, filed a motion asking that the guidelines be excluded as evidence, saying that they do "not have the force and effect of law." U.S. District Judge Leonard D. Wexler ruled in favor of the government."

According to the Post, "An extensive effort to ease tensions between physicians who specialize in treating pain and the Drug Enforcement Administration over the use of morphine-based painkillers has backfired -- leaving many pain doctors and patients more fearful than before that they could be arrested for practicing what they consider good medicine. The DEA triggered the new impasse this month when it published a statement clarifying its position on a number of issues central to pain medicine. The document discusses when a doctor is at risk of being investigated for alleged prescription drug diversion, whether patients with known drug problems can ever be prescribed narcotic painkillers and whether doctors can give patients prescriptions to be filled on a future date. On all these issues, the new DEA position is at odds with a set of guidelines negotiated over several years by DEA officials and a group of leading pain-management experts. Those guidelines were posted on the agency's Web site in August as part of an effort to reassure doctors who properly prescribe narcotics, but several weeks later the document was abruptly removed and described by the agency as inaccurate and unofficial."

For more on the Guidelines, see DEA Withdraws Its Pain Prescription Guidelines.


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