The accidental drug trafficker

Three years ago, federal prosecutors likened McLean, Virginia, pain doctor William Hurwitz to "a street-corner crack dealer." But it turned out there were a few differences. Unlike a street-corner crack dealer, Hurwitz did not sell drugs. Instead, he prescribed narcotics to patients, the vast majority of them undisputedly legitimate, in an attempt to relieve severe chronic pain. The small minority of patients who used the pills to get high or sold them on the black market also claimed to be suffering unrelieved pain, and Hurwitz said he believed them.

Prosecutors said none of this mattered—not because Hurwitz was lying (although they suggested he was) but because, even if he was completely on the level, even if he was making a conscientious effort to treat pain, he was still guilty of drug trafficking. A federal appeals court recently rejected this astonishing assertion, dealing a blow to prosecutions that seek to punish mistakes in medical judgment with prison terms.

The case against Hurwitz, who was convicted of 50 drug trafficking charges in December 2004 and sentenced to 25 years in federal prison the following April, encouraged doctors who already thought twice before helping patients in pain to think three or four times. Prosecutors argued that a physician who writes prescriptions in good faith can nevertheless be convicted of drug trafficking, and the judge instructed the jurors accordingly.

Consider for a moment what this position would mean if it were applied to other crimes. If you mistakenly picked up someone else's suitcase at the airport, you could be convicted of theft. If a child climbed into your cart at the supermarket, you could be convicted of kidnapping. If you accidentally killed a pedestrian who darted in front of your car, you could be convicted of murder.

Fortunately for Hurwitz, other doctors who treat pain, and the millions of patients who depend on them, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit unanimously repudiated the Justice Department's concept of accidental drug trafficking. "A doctor's good faith in treating patients is relevant to the jury's determination of whether the doctor acted beyond the bounds of legitimate medical practice," the court ruled, vacating Hurwitz's conviction and ordering a new trial.

The government argued that even if the judge's instructions to the jury were incorrect, the error was "harmless" because it did not affect the trial's outcome. Yet Hurwitz's intent was the focus of his defense, and comments by the jury foreman after the trial indicated the jurors thought he was guilty of negligence at worst. "Good faith was at the heart of Hurwitz's defense," the 4th Circuit noted. "By concluding that good faith was not applicable...and affirmatively instructing the jury that good faith was not relevant...the district court effectively deprived the jury of the opportunity to consider Hurwitz's defense."

The appeals court muddied the waters a bit by insisting on an "objective rather than a subjective standard for measuring Hurwitz's good faith." It's not clear exactly what that means. Since a jury cannot see Hurwitz's thoughts, it obviously must rely on objective evidence of his good faith: Did he take medical histories and perform exams before prescribing painkillers? Did he consult with other doctors and make an effort to keep up on the latest developments in pain treatment? Did patients who were faking or exaggerating pain feel a need to lie and conceal?

The answer to all those questions is yes, strongly suggesting that Hurwitz prescribed painkillers in good faith. But if the "objective" standard demands more—if it requires not only that a doctor believe he is practicing good medicine but that he is in fact practicing good medicine--it treats malpractice as a felony rather than a regulatory violation or a tort. Doctors who err on the side of trusting their patients already risk their licenses and their livelihoods. They should not have to risk their freedom as well.

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FASCIST DEA BUREAUCRATS RELENT A LITTLE

The Drug Enforcement Administration yesterday overturned a two-year-old policy that many pain specialists said was limiting their ability to properly treat chronically ill patients in need of powerful, morphine-based painkillers. While defending its efforts to aggressively investigate doctors who officials conclude are writing painkiller prescriptions for no "legitimate medical purpose," the agency agreed with the protesting experts that it had gone too far in limiting how doctors prescribe the widely used medications.

The unusual turnaround was welcomed by relieved doctors, who said it will help restore "balance" in government policy between the needs of pain patients and the effort to control prescription drug abuse and diversion.

Specifically, the DEA proposed a formal rule that would allow doctors with patients who need a constant supply of morphine-based painkillers to write multiple prescriptions in a single office visit. Under the new rule, a doctor can write three 30-day prescriptions at a time -- two of them future-dated -- to be filled a month apart. Two years ago, the agency clamped down on the common practice of writing such multi-month prescriptions, which it said were probably illegal and were contributing to the growing abuse of prescription painkillers. As a result of the DEA's position, many doctors began requiring patients to come in each month for a new prescription -- office visits many doctors considered medically unnecessary but essential to keep them out of trouble with the DEA.

Yesterday, DEA Administrator Karen Tandy said the agency had been wrong in limiting the multiple prescriptions and had made the tough decision to reverse course. She said the DEA received more than 600 comments from doctors, patients and others about its policies on narcotic painkillers, many of them strongly opposed to the agency's position on limiting refills. "Think about how hard it is for anybody to go out publicly and say, 'We think this is probably prohibited by law,' " she said, referring to the earlier decision to prohibit multiple refills. "And then you listen to people and then you say, 'You know what? You're right,' and we're going to propose a rule that interprets this correctly. And that's what we've done."

When the DEA issued its restrictive 2004 drug refill guidelines, many pain specialists saw it as a sign that relations between their profession and the agency had deteriorated badly. They also complained that DEA arrests and prosecutions of doctors treating pain were creating a "chill" on medical practice and denying patients drugs they needed.

Agency officials had earlier worked for two years with pain and hospice experts on a "frequently asked questions" guideline to advise doctors on how to prescribe controlled drugs in a way that would not get them into trouble with law enforcement. The agency briefly posted the guidelines on its Web site in 2004 but then pulled them down and disavowed them. One of the doctors involved with writing the guidelines -- who became a critic of the DEA when they were abruptly discarded -- called Tandy's actions yesterday "a very positive step forward in restoring that necessary cooperation between practicing physicians and the DEA."

Howard Heit, a Fairfax County pain and addiction specialist, also said the new policy will help patients get better care by allowing doctors more flexibility in prescribing controlled drugs.

But Siobhan Reynolds, who created the Pain Relief Network several years ago to help defend pain doctors who she said were being unfairly arrested and prosecuted, disagreed and said the new DEA policy has changed little. "Ms. Tandy states here, as she has on many occasions, that doctors need not fear criminal prosecution as long as they practice medicine in conformity with what these drug cops think is 'appropriate,' " Reynolds said. "If that isn't a threat, it will certainly pass for one within the thoroughly intimidated medical community."

The use of prescription narcotics rose sharply over the past decade as knowledge grew on how to control intractable pain and specialists found what they considered better ways to help patients. That growing use, however, has led to abuse as well, and to scores of deaths and injuries associated with prescription narcotics.

In addition to publishing its new policy statement and rulemaking yesterday, the DEA began posting extensive information on its Web site about doctors who have been arrested and prosecuted for their prescribing practices. Tandy said that she hopes doctors will review the cases so they will see that only "egregious" offenders are being prosecuted.

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For greatest efficiency, lowest cost and maximum choice, ALL hospitals and health insurance schemes should be privately owned and run -- with government-paid vouchers for the very poor and minimal regulation. Both Australia and Sweden have large private sector health systems with government reimbursement for privately-provided services so can a purely private system with some level of government reimbursement or insurance for the poor be so hard to do?

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