FEDERAL APPEALS COURT ORDERS NEW TRIAL FOR PAIN SPECIALIST

The federal appeals court in Richmond yesterday vacated the
drug-trafficking convictions of Dr. William E. Hurwitz and ordered a
new trial for the physician who specialized in treating pain.

A three-judge panel of the 4th U.S. Circuit Court of Appeals said the
trial judge, Senior U.S. District Judge Leonard D. Wexler of
Alexandria, should not have instructed the jury that it must not
consider whether Hurwitz acted in good faith in prescribing large
doses of OxyContin and other painkillers. The instructions allowed the
jurors to consider good faith only on two fraud counts.

In the opinion issued yesterday, the panel concluded that the question
of good faith is relevant when a registered physician is charged, as
Hurwitz was, with violations of the federal law prohibiting
distribution of controlled substances.

At his trial in late 2004, Hurwitz testified that he prescribed
massive amounts of painkilling drugs to some of his patients at his
clinic in McLean, but he insisted that he always did so for sound
medical reasons.

The government's case claimed Hurwitz operated outside the boundaries
of accepted medical practice and in fact knew his patients were drug
abusers who were taking the drugs he prescribed and selling them on
the street. Federal authorities accused him of singlehandedly fueling
a Northern Virginia black market in potent prescription drugs.

Hurwitz's defense claimed that for patients suffering from long-term,
constant pain, the high-dose protocol used by Hurwitz was appropriate
because the body develops resistance to the harmful side effects of
opioid painkillers, which are similar to opiates. The defense claimed
the dose for an individual can be raised without limits until pain
relief is achieved.

After a six-week trial and four days of deliberations, the jury
convicted Hurwitz on 50 counts out of 62 in the indictment. He was
acquitted on nine counts. The jury deadlocked on three counts. He was
sentenced April 15, 2005, to 25 years in prison.

At sentencing, Wexler said many of Hurwitz's patients were obviously
drug dealers or addicts and Hurwitz ignored the evidence. In one case,
a patient claimed the track marks on his arms were from poison oak.
Hurwitz accepted the story and gave the man anti-itch cream along with
his narcotics prescription.

Hurwitz's lawyer said that showed his client is trusting and could be
manipulated by patients.