The Nation

PAINFUL RIFT UNNERVES DOCTORS

The clash over the use of opioids to treat patients intensifies. Where law
enforcement officials see a drug pusher, many in medicine see a pioneer.

Federal prosecutors launched one of their highest-profile and most
controversial assaults in the war against prescription drug abuse recently
when they indicted Dr. William E. Hurwitz, a 57-year-old Virginia pain
treatment specialist.

Hurwitz, a Stanford University medical graduate who also has a law degree,
was depicted as a "street-corner crack dealer" by federal officials during
a court hearing last month. He remains in a Virginia jail, unable to post
bail set at $2 million.

Although medical boards have suspended Hurwitz's license three times in the
last decade and federal officials have depicted him as corrupt, the case
has evoked unexpected support from medical groups.

Hurwitz is regarded as a pioneer in pain treatment by many doctors,
academicians and medical groups, who have decried his prosecution. The
case, along with other prominent criminal prosecutions, is putting a chill
on legitimate pain treatment by doctors who fear prosecution, they say.

The Hurwitz case has exposed a deepening rift between law enforcement and
the medical community over the use of opioids in modern pain treatment.
These powerful drugs, including OxyContin, Vicodin and Dilaudid, are based
on natural or synthetic opium.

Over the last decade, a revolution in medical thinking has discarded the
idea that people should just cope with profound long-term pain, and instead
holds that they should be helped with high doses of opioids. Without such
treatment, the victims of serious disease and injury are often bedridden,
unemployable and depressed, and in some cases suicidal, doctors say.

At the same time, abuse of these drugs has soared. An estimated 6.4 million
Americans illegally used opium-based painkillers in 2001, more than the 4.1
million who used cocaine, according to the Substance Abuse and Mental
Health Services Administration. OxyContin, introduced seven years ago and
hailed as a breakthrough drug, has become the most abused pain pill in the
nation.

Illegal use of opioids has been going up 27% annually, according to
surveys. Among the most recent high-profile cases is that of talk show host
Rush Limbaugh, who recently admitted he is a pain-pill addict.

Despite such abuse, national health organizations argue that serious pain
is undertreated and have criticized the Justice Department and local law
enforcement agencies for causing widespread fear among doctors that they
can not prescribe opioid painkillers, particularly OxyContin, without
risking prosecution.

"There is no question that doctors now fear being held liable if they
prescribe painkillers," said Dr. Michael Fleming, a practicing Louisiana
doctor and president of the 94,000-member American Academy of Family
Physicians. "We have let our members know what is going on. There is a
heightened awareness by the Drug Enforcement Administration."

A broad range of experts, including pain specialists, directors of hospice
facilities, academicians and the pharmaceutical industry, have come to the
same conclusion. Even law enforcement officials agree that legitimate
doctors are spooked, although officers have sought to assure them that they
have nothing to worry about.

"What happens typically is that 99% of the physicians, who are good, decent
people, can become paranoid," said John Burke, head of a drug enforcement
task force in Ohio and vice president of the National Assn. of Drug
Diversion Investigators. "This is a very touchy issue. We do not want to
impact legitimate pain patients or their physicians."

Prosecutors and investigators say doctors violate the law when they
prescribe pain pills to patients who they know - or reasonably should know
- - are selling or abusing the drugs. The most flagrant cases involve doctors
who spend little time with patients, write them identical pain-pill
prescriptions and ignore repeated signs that they are attracting addicts to
their office. A patient overdose death, not evidence on its own of illegal
prescribing of pain pills, often attracts close scrutiny.

The medical use of marijuana, which received a favorable ruling last week
from the Supreme Court, is another issue on which federal prosecutors are
clashing with doctors. But with official estimates that 75 million
Americans suffer from persistent pain, opioids have a vastly more important
and accepted role in medicine.

Trying to Curb Abuse

The DEA, which regulates controlled drugs such as opioids, denies that it
has ramped up prosecutions or adopted tougher investigation tactics, but
rather says it is trying to hold the line on the abuse of pain medications,
which has caused serious social and economic problems.

Pat Good, a senior official at the DEA's office of diversion control, said
the agency was focusing on doctors who ran "prescription mills" or whose
entire practices involved pain medications diverted to illegal uses. And
allegations that the agency is putting a chill on pain treatment are not
new, she said.

"We have heard that same issue for years," Good said. "Obviously, there is
an increase in abuse and an increase in our reaction to it. We have gone
out of our way to reassure people that legitimate practice is not the issue."

This month, the DEA doubled its fees on doctors, pharmacies and drug makers
for controlled-substance registrations, an administrative action that will
raise an additional $60 million annually for the DEA's program to fight the
diversion of controlled drugs. The funds will provide for a modest increase
in DEA enforcement efforts, Good said.

Good said nearly 1 million doctors held DEA controlled-substance
registrations allowing them to prescribe opiates, whereas the agency had
just 400 investigators. In 2002, 68 doctors were arrested for crimes
involving controlled substances; in 2001 there were 76 arrests. The annual
number of prosecutions has ranged from 50 to 80 for years, Good said.

Critics say the official statistics vastly understate the magnitude and
growth of the prosecution efforts, because 95% of cases are plea-bargained
or handled administratively by state medical boards in collaboration with
the DEA and local law enforcement groups.

Even doctors who adhere carefully to rules can run afoul of law enforcement
agencies, according to David Brushwood, an expert on opioid legal issues
and a professor of pharmacology at the University of Florida.

"Something is terribly wrong with the way some criminal justice authorities
have begun to enforce the law against physicians and pharmacists who
prescribe and dispense high-dose opioids to treat chronic pain," he said.
"The necessary balance has tipped drastically in the direction of ruthless
drug control."

Brushwood, who was long regarded as a moderate voice on such legal issues,
pointed to the prosecution of Dr. Frank Fisher. A Harvard Medical School
graduate who ran a clinic for low-income residents in Shasta County, Fisher
was charged in 1999 with murdering five of his patients, along with billing
fraud and drug dealing.

On the first day of his trial in Superior Court, the charges were
dismissed, though lesser charges are still pending. Fisher says he is
financially ruined and now lives with his father. "This is a situation that
defies common sense," he said.

Patrick Hallinan, Fisher's San Francisco attorney, said honest doctors all
over the country were being targeted by the DEA when their patients
violated the law without the doctor's knowledge. Agents are using the same
tactics against honest doctors that are used against narcotics dealers, he
said.

"There isn't any doubt that these prosecutions are increasing under the
Bush administration," Hallinan said. "It is like busting a car dealer
because somebody runs off the road and kills somebody."

Rather than tip off doctors that their patients may be dealing drugs on the
street, the DEA strikes deals with the patients to testify against the
doctors, according to doctors and defense attorneys. Doctors are vulnerable
because they have no physical test to determine whether a patient is in
real pain, and they have no control over what happens after patients leave
a clinic, they add.

Jeri Hassman, a Tucson doctor indicted in March, said she was never
informed of any concerns about her practice over the last 17 years. She was
charged after an undercover sting that used a three-time convicted felon,
along with two undercover DEA agents, said Hassman's attorney Bates Butler.

But Burke, the narcotics investigator in Ohio, said most good police
departments did tip off doctors that patients were diverting drugs before
they launched investigations.

"Physicians are not targeted because of one patient but rather an
overwhelming pattern of activity," he said. "There is nothing illegal about
being duped by your patient. Everybody gets duped. The doctors we target
are well-aware they have bad patients."

Of course, not every local department adheres to such policies. Good, the
DEA official, said, "Some locals have behaved differently than the DEA would."

Still, even in states with progressive medical regulations, like Minnesota,
doctors are growing increasingly worried about prosecution, said Dr. Thomas
E. Elliott, director of St. Mary's Hospice in Duluth.

The prescription volume for doctors who specialize in pain treatment -
especially those with hundreds of pain patients who travel from around the
country - can create the appearance of a major illegal drug distribution
operation.

Steps doctors take to protect themselves include keeping careful medical
records, documenting that opioids are improving patients' conditions and
requiring patients to sign contracts.

Modern pain treatment can seem extreme to the uninitiated. The goal is to
provide as much opioid medication as needed to negate pain - in some cases,
dozens of pills a day. Although patients may become physically dependent
and will go through withdrawal if the drugs are suddenly stopped, they are
not addicted in the traditional sense.

A patient taking opioids for serious pain reaches a tolerance level within
a few weeks; there is no sensation of euphoria, pharmacologists and doctors
say, even though the drugs still cancel the pain.

Henry Farkas, an emergency room and hospice doctor in Elkton, Md., said he
has grown more cautious about prescribing opioids as he has heard about
prosecutions around the country.

"I worry about this more than I have in the past," Farkas said. "These
prosecutions are of good doctors who sound like they were doing the right
thing. But the government is pursuing them and charging them with being
drug kingpins."

Medical boards and civil juries have ruled against doctors who have failed
to adequately treat pain - particularly at the end of life, when people
sometimes go through agonizing ordeals. As a result, doctors are often
reluctant to say they will not treat pain.

Dr. Ronald Myers, who operates five clinics for low-income people in the
Mississippi Delta region, said he too had grown more reluctant about
prescribing painkillers. Myers, a Baptist minister and regional advocate
for pain treatment, says that before he writes a prescription for OxyContin
or other opioids, he requires a patient to see a pain management specialist.

"But in some cases, even if the pain management specialist recommends them,
I still won't write them because I am afraid of the DEA and the medical
board shutting me down."

High Doses Encouraged

It was high-dosage treatments that Hurwitz helped to pioneer, according to
Brushwood and many others.

Hurwitz seems like an unlikely champion for the cause of pain treatment,
given his history of run-ins with authority. Before his arrest late last
month, Hurwitz had his medical license revoked once in Washington, D.C.,
and twice in Virginia. His supporters blame the suspensions on the medical
establishment's efforts to block his campaign for use of high doses of
opioids to treat serious pain.

After his arrest, the Assn. of American Physicians and Surgeons - along
with the American Pain Institute, the Pain Relief Network and the National
Foundation for the Treatment of Pain - condemned the prosecution at a news
conference.

"It seems to us that the DEA has shifted its focus from street thugs to
doctors, because doctors are easier targets," said Kathryn Serkes, a policy
executive at the association of physicians and surgeons. The group now
flatly advises its doctors not to prescribe opioids.

The American Medical Assn. has not weighed in on the Hurwitz case, but last
July fired a warning shot by posting on its Web site a statement that it
"wants no doctor harassment over pain medication" and pledging to take the
case to President Bush and Atty. Gen. John Ashcroft. Good, the DEA
official, said that the AMA has not contacted the agency since making that
statement.

The charges against Hurwitz depict him as a corrupt and ruthless profiteer.
His arrest is part of Operation Cotton Candy, in which federal prosecutors
have obtained convictions of more than 15 Hurwitz patients who were selling
pain pills from him on the street.

The indictment alleges that one of Hurwitz's patients died of a morphine
overdose within 33 hours of her first visit to his office. Another patient
was a pregnant woman whose baby was born with an addiction, the indictment
charged. Assistant U.S. Attys. Gene Rossi and Mark Lytle said in a bail
hearing that they had tape-recorded evidence that a patient told Hurwitz he
was dealing painkillers on the street and the doctor still wrote a
prescription.

Hurwitz's attorney James Hundley said prosecutors have falsified a number
of claims, such as asserting Hurwitz earned $2 million in illegal profits.
The $2 million represented Hurwitz' gross revenues over a four-year period
and included funds needed to cover staff salaries and clinic expenses, he said.

And Hurwitz's supporters remain unshaken.

"Hurwitz is a wonderful doctor, completely dedicated to his patients," said
Ronald T. Libby, a professor at the University of North Florida who is
writing a book about the friction between law enforcement and doctors. "If
it were not safe for Hurwitz to prescribe meds, who would it be safe for?"