TRAFFICKER OR HEALER? AND WHO'S THE VICTIM?

ALEXANDRIA, Va. -- The case of the United States v. William Eliot
Hurwitz, which began in federal court here on Monday, is about much
more than one physician. It's a battle over who sets the rules for
treating patients who are in pain: narcotics agents and prosecutors,
or doctors and scientists.

Dr. Hurwitz, depending on which side you listen to, is either the
most infamous doctor-turned-drug-trafficker in America or a
compassionate physician being persecuted because a few patients duped him.

When Dr. Hurwitz, who is now 62, was sent to prison in 2004 for 25
years on drug trafficking and other charges, the United States
attorney for Eastern Virginia, Paul J. McNulty, called the conviction
"a major achievement in the government's efforts to rid the pain
management community of the tiny percentage of doctors who fail to
follow the law and prescribe to known drug dealers and abusers."

Siobhan Reynold, the president of an advocacy group called the Pain
Relief Network, hailed Dr. Hurwitz's singular dedication and compared
his plight to Galileo's. Some of the country's foremost researchers
in pain treatment and addiction supported his appeal for a retrial,
which was ordered because the jury in the first case was improperly
instructed to ignore whether Dr. Hurwitz had acted in "good faith."
These scientists say they are upset by how their research has been
distorted by prosecutors in this case, and suppressed by the Drug
Enforcement Administration in its campaign against the misuse of
OxyContin and other opioid painkillers.

In the first trial, the prosecution accused Dr. Hurwitz of crossing
the line from doctor to trafficker by prescribing irresponsibly high
doses of painkillers to his patients in the Virginia suburbs of
Washington. He was accused of ignoring blatant "red flags" or signs
that some patients were misusing or selling the drugs. That is an
emotionally powerful argument for a jury: warning signs can seem
perfectly clear with the benefit of hindsight.

But to researchers who study deceptive patients, there is no such
thing as a blatant red flag. Deception is notoriously difficult to
spot, as Dr. Beth F. Jung and Dr. Marcus M. Reidenberg of Cornell
University document in a new survey of the literature. They note, for
starters, an experiment showing that even police officers and judges
- -- ostensibly experts at detecting fraud -- do no better than chance
at detecting lying.

Doctors are especially gullible because they have a truth bias: they
are trained to treat patients by trusting what they say. Doctors are
not good at detecting liars even when they have been warned, during
experiments, that they will be visited at some point by an actor
faking some condition (like back pain, arthritis or vascular
headaches). In six studies reviewed by the Cornell researchers,
doctors typically detected the bogus patient no more than 10 percent
of the time, and the doctors were liable to mistakenly identify the
real patients as fakes.

When treating people with chronic pain, doctors have to rely on what
patients tell them because there is no proven way to diagnose or
measure it. Also, there is no standard dosage of medicine: A
prescription for opioids that would incapacitate or kill one patient
might be barely enough to alleviate the pain of another.

During the first trial, the prosecution argued that it was beyond the
"bounds of medicine" for Dr. Hurwitz to prescribe more than 195
milligrams of morphine per day, but dosages more than 60 times that
level are considered acceptable in a medical textbook. The
prosecution's supposedly expert testimony on dosage levels and proper
pain treatment for drug addicts was called "factually wrong" and
"without foundation in the medical literature" in a joint statement
by Dr. Russell K. Portenoy and five other past presidents of the
American Pain Society.

Dr. Portenoy, the chairman of the pain medicine department at Beth
Israel Medical Center, was one of the researchers who worked with the
D.E.A. four years ago to draw up guidelines on pain medication for
doctors and law enforcement officials. The guidelines assured doctors
that they would be safe unless they "knowingly and intentionally"
prescribed drugs for illegitimate reasons, and cautioned narcotics
agents not to investigate doctors just because they prescribed large
quantities.

The D.E.A. published the guidelines, and then abruptly withdrew them
on the eve of Dr. Hurwitz's trial, just after his defense had
indicated that it planned to use the document at the trial. The
D.E.A., which said the document had not been properly vetted, went on
to repudiate some of the guidelines and warned that it intended to
keep targeting doctors deemed suspicious because they prescribed
large quantities and ignored certain red flags.

Dr. Portenoy, who is to be a witness for Dr. Hurwitz at the retrial,
has been one of the pioneers in identifying the risks of prescribing
opioids. He says the warning signs that seem so obvious to
prosecutors rarely offer clear guidance to doctors. When a patient
keeps asking for refills because he runs out of his pills early, does
that mean that he is a dealer or that he is not getting enough
medication? If a urine test shows the presence of cocaine or other
illegal drugs -- as it did in some of Dr. Hurwitz's patients --
should a doctor automatically cut him off? That's what some
prosecutors and narcotics agents demand, but doctors realize that
there are plenty of illegal drug users who also need pain relief.

"Half of pain patients would have to stop taking their medicine if
the rule went out that every so-called red-flag behavior meant you
couldn't prescribe," Dr. Portenoy says. He and researchers like Dr.
Steven D. Passik, a psychologist at the Memorial Sloan-Kettering
Cancer Center, have found that about half of pain patients exhibit at
least a couple of the warning signs, and that even veteran physicians
cannot agree on which signs are the most important to look for.

In a pretrial motion, Dr. Hurwitz's lawyer, Richard A. Sauber, asked
the court to bar the prosecution's expert witnesses from using the
red-flag argument because "it defies reason that any expert could
testify" about something without "scientific support." That motion
was denied, however, so the flags may well be waving during the trial.

Even Dr. Hurwitz's supporters acknowledge that he is not the ideal
doctor to be the representative for the cause of pain patients.
Although his expertise in pain medicine is well respected, some say
he was gullible and reckless to the point of incompetence. But the
traditional punishments for such mistakes are malpractice settlements
and the loss of a state medical license, not a federal investigation
and 25 years in prison.

"Doctors are trained to treat patients, not to be detectives," says
Dr. James N. Campbell, a Johns Hopkins University neurosurgeon
specializing in pain, who will be another witness for Dr. Hurwitz. He
says that doctors have already reacted to the D.E.A. crackdown by
changing the way they deal with the many Americans -- at least 50
million, by several estimates -- who suffer from chronic pain.

"Opioids were a revolution in pain treatment during the 1990s, but
doctors are now more reluctant to use them," Dr. Campbell says. "If a
doctor perceives there's a 1 in 5,000 chance that a prescription will
lead to a D.E.A. inquiry -- just an inquiry, not even an arrest --
he's not going to take the chance. So the victims are the patients."