DOSE RESPONSE MISCONCEPTIONS ABOUT PAIN TREATMENT COULD PUT A DOCTOR IN
PRISON FOR LIFE

In December, after a federal jury convicted McLean, Virginia, pain doctor
William Hurwitz of running a drug trafficking operation, the foreman told
The Washington Post "he wasn't running a criminal enterprise." Don't bother
reading that sentence again; it's not going to make any more sense the
second time around. Hurwitz, who is scheduled to be sentenced on April 14
and will go to prison for life if U.S. District Judge Leonard Wexler
follows the prosecutors' recommendation, was charged with drug trafficking
because a small minority of his patients abused or sold narcotic
painkillers he prescribed for them. Prosecutors argued his practice
amounted to a "criminal enterprise" based on a "conspiracy of
silence"-i.e., a conspiracy in which Hurwitz did not actually conspire with
anyone-because he charged for his services and should have known some of
his patients were faking or exaggerating their pain.

Judging from the comments of the jury foreman, Ralph Craft, the jurors did
not really buy this theory.

Perhaps they still harbored the legally unsophisticated notion that drug
traffickers are people who engage in drug trafficking. But they convicted
Hurwitz anyway, because they didn't like the way he practiced medicine.
"I'm not an expert," Craft conceded, while expressing the opinion that
Hurwitz was "a little bit cavalier" in prescribing opioids. "He ramped up
and ramped up the prescriptions very quickly," he said. "This is stuff that
can kill people. He should have been extra careful."

Craft and his fellow jurors were appalled by the sheer number of pills
Hurwitz prescribed. "The dosages were just astounding," he said, calling
them "beyond the bounds of reason."

As an example, Craft cited a prescription for 1,600 pills a day. As Hurwitz
explained during the trial, this particular prescription, which was never
filled, resulted from a nurse's calculation error that was discovered at
the pharmacy. But it's true that many of his patients were taking very high
doses of painkillers, doses that would kill someone unaccustomed to
narcotics. Although the jurors apparently considered such doses inherently
suspicious, they are necessary for treating severe chronic pain because
patients develop tolerance to the analgesic effects of narcotics.

They are safe because patients also develop tolerance to the potentially
fatal respiration-depressing effects of these drugs.

Responses to pain medication vary from person to person, and there is no a
priori limit to how high doses can be "ramped up." The prosecution
deliberately obscured these points during Hurwitz's trial, relying on the
jurors' ignorance of pain treatment principles to convict him. The
government's main medical expert, Michael Ashburn, testified that
consumption of high narcotic doses by patients with chronic pain who do not
have cancer is a sign of drug abuse.

In a letter they wrote before the verdict, six past presidents of the
American Pain Society rebuked Ashburn for this statement, along with
several other misrepresentations of pain treatment standards. "We are
stunned by his testimony," they said. "Use of 'high dose' opioid therapy
for chronic pain is clearly in the scope of medicine."

As these pain experts recognized, Hurwitz was not the only person on trial
at the federal courthouse in Alexandria. So was every doctor who has the
courage to risk investigation by treating people who suffer from severe
chronic pain with the high doses of opioids they need to make their lives
livable. In poignant letters to Judge Wexler, who has fairly wide latitude
in punishing Hurwitz now that the U.S. Supreme Court has made federal
sentencing guidelines merely advisory, dozens of his former patients
recount how he saved them from constant agony caused by migraines, back
injuries, reflex sympathetic dystrophy, and other painful conditions that
left them disabled, homebound, despondent, and in some cases suicidal.

They outline the difficulties they had in getting adequate treatment before
they found Hurwitz and the trouble they've been having since the government
put him out of business. "Good pain doctors are hard to find," writes one.
"I am saddened that Dr. Hurwitz is branded a criminal for helping me and
helping people like me." Another argues that Hurwitz's "crime"-trusting his
patients-was one of his greatest virtues. "It is to Dr. Hurwitz's credit,"
he says, "that he chose to trust that his patients were genuinely seeking
relief from pain that cannot be objectively measured.

This trust is, in my experience, all too rare." Threatening doctors with
prison for viewing their patients with inadequate suspicion will make it
even rarer.