So why did find him guilty of “knowingly and intentionally” distributing drugs “outside the bounds of medical practice” and engaging in drug trafficking “as conventionally understood”? After attending the trial and talking to the jurors, I can suggest two possible answers:
1. The jurors were confused by the law.
2. The law is a ass (to quote Mr. Bumble from “Oliver Twist”).
I can’t blame the jurors for being confused, because that’s the norm in trials of pain-management doctors. The standard prosecution strategy is to charge the doctor on so many counts and introduce so much evidence that the jurors assume something criminal must have happened. Their natural impulse, after listening to weeks of arguments, is to look for a compromise by digging into the mountain of medical minutiae – and getting in so deep that they lose sight of the big picture.
In this trial the jury heard three weeks of testimony concerning 45 different counts of drug trafficking involving 44 different prescriptions written for 19 different patients. It spent seven days deliberating, looking for what the prosecution called “red flags” (like urine tests showing that the patient had been taking illegal drugs). The jurors told me they had meticulously studied patients’ records and convicted Dr. Hurwitz on 16 counts because those prescriptions seemed more troubling than the rest – a fair enough assessment, because those particular patients did show more signs of trouble.
But did that mean Dr. Hurwitz’s motives were any more criminal in those 16 instances? Was he any more knowingly a drug dealer when writing those prescriptions? Prosecutors tried portraying him as a greedy co-conspirator with his drug-dealing patients, but none of the three jurors I interviewed bought that theory. (If any other jurors want to weigh in, you can write me at tierneylab@nytimes.com.)
The evidence in the case – including conversatons during office visits that were furtively recorded by patients cooperating with narcotics agents – showed that Dr. Hurwitz was being conned. On one recording, a patient who’d been selling his OxyContins bragged to his wife (and fellow dealer) that Dr. Hurwitz “trusts the [expletive] out of me.”
“Those patients used the doctor shamelessly,” said a juror I’ll call Juror 1. (All three jurors, citing the controversy over the case, spoke to me on condition of anonymity, so I’ll refer to them by numbers.) This juror added, “They exploited him. I didn’t see him getting anything financial out of it. Many of his patients weren’t even paying him. He had to believe that he was just treating them for pain.”
The other jurors agreed. “There was no financial benefit to him that was very evident to us,” Juror 2 said. “It was a really hard case for all of us. I think that Dr. Hurwitz really did care about his patients.”
So why convict him? “There were just some times he fell down on the job,” Juror 2 said. The third juror echoed that argument using the prosecution’s language: “There were red flags he should have seen.”
Plenty of doctors would agree that he should have paid more attention to those warning signs. Plenty would agree that he fell down on the job. Some have already said he should have lost his medical license. But falling down on the job is generally not a criminal offense, especially when there’s no criminal intent.
I asked the three jurors what they made of the distinction made by Dr. Hurwitz’s lawyers and by the judge: that this trial was not a malpractice case. In legalese, the jurors were to decide not whether Dr. Hurwitz had provided the proper “standard of care,” but whether he had violated the Controlled Substances Act by prescribing drugs “outside the bounds of medical practice.” The jurors said they were all aware of the distinction, but none of them claimed to understand it.
“I don’t know that I know enough to be clear about that gray area between malpractice and out of bounds,” Juror 1 said.
“We just had to go with our gut,” Juror 2 said.
“That was definitely a struggle,” Juror 3 said. “That was a gray area.”
Again, I can’t blame the jurors for being confused, because lawyers can’t agree on this distinction either. And that’s why, in the end, I think Dr. Hurwitz’s problem was not so much with the jurors as with the law. The Controlled Substances Act is a ass – or at least it’s been turned into one by the Drug Enforcement Administration and the Department of Justice.
A doctor is obviously acting outside the bounds of medical practice when he’s intentionally prescribing OxyContin not as medicine but as inventory to drug dealers. But as the law has come to be applied by narcotics agents and federal prosecutors, a doctor who is genuinely trying to treat pain can still be sent to prison. Lapses in medical judgment – or even just differences in medical judgment – have been criminalized. A doctor can be suddenly redefined as a non-doctor. All it takes is a second opinion from a jury.
The DEA and cooperating Bushie US attorneys use the misbehavior of a few pain patients who sell some of their pills to other desperate pain patients, as a means to brand their pain doctor as a drug dealer, even though the doctor took every measure possible to monitor and ensure that his patients in fact took the medicine he prescribed. When the DEA cannot find such patients of a particular doctor, they simply send in agents with falsified medical records to pose as patients. If the doctor, who probably doesn’t keep a lie detector machine in his office, is conned into prescribing pain medicine for the agents, the trap is sprung: the doctor has prescribed narcotics to persons who have no legitimate need for narcotics, and thus has acted as a “drug dealer”. The doctor had no doctor-patient relationship (with the undercover agent who is not a real patient) and the office visit was simply a cover for the doctor to obtain cash for prescribing narcotics. 5 to 10 years in prison for each prescription written “outside the course of legitimate medical practice”. Usually an effective sentence of life in prison for a 55 to 65 year old doctor. But who cares' At least the annoying doc is out of action, and his case should scare other doctors away from prescribing real pain medicine and interfering with the DEA’s cash cow.
And if the DEA can identify a few patients of a pain doctor who lied to him to obtain prescriptions, traded their pills on the street for cocaine, methamphetamine, or heroin, then shot or snorted up, overdosed and died, why not charge the doctor with a few counts of manslaughter, in case the drug counts don’t put him away forever' The strategy usually works just fine, because the doctor quickly runs out of whatever funds the DEA did not manage to confiscate after the initial charges are filed, and cannot pay a decent lawyer to carry on the endless legal battles while he sits in jail.
I wish I was describing Nazi Germany or Stalinist (or Putin’s)Russia. Unfortunately, I am talking about the Republican States of America. To answer Tierney’s question: The dismissal of serious charges against Hurwitz means absolutely nothing until an Independent Prosecutor-led investigation of the DEA reveals that government agency to be a RICO mob.
Paul H. Volkman, M.D., Ph.D.
— Posted by Paul H Volkman, M.D., Ph.D.
http://tierneylab.blogs.nytimes.com/2007/04/19/judge-dismisses-the-most-serious-charges-against-dr-hurwitz/
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". . . physicians may be getting mixed messages from boards: on the one hand, that effectively managing their patients’ pain is the expected standard of care; and on the other hand, that the board is more concerned about opioid overprescribing than underprescribing. Perhaps this is unavoidable given the realities of opioid diversion practices. In terms of lessons one might take away from these findings, reformers may have to accept that management of chronic pain inevitably carries with it a greater chance of entanglement with licensing and law enforcement authorities than management of cancer pain, given the higher risks of diversion." Achieving the Right Balance in Oversight of Physician Opioid Prescribing for Pain: The Role of State Medical Boards Diane E. Hoffmann and Anita J. Tarzian
Achieving the Right Balance in Oversight of Physician Opioid Prescribing for Pain: The Role of State Medical Boards Diane E. Hoffmann and Anita J. Tarzian Journal of Law, Medicine & Ethics, 31 (2003): 21–40. © 2003 by the American Society of Law, Medicine & Ethics. "Uncertainty regarding potential disciplinary action may give physicians pause when considering whether to accept a chronic pain patient or how to treat a patient who may require long-term or high doses of opioids. Surveys have shown that physicians fear potential disciplinary action for prescribing controlled substances and that physicians will, in some cases, inadequately prescribe opioids due to fear of regulatory scrutiny. Prescribing opioids for long-term pain management, particularly noncancer pain management, has been controversial; and boards have investigated and, in some cases, disciplined physicians for such prescribing. While in virtually all of these cases the disciplinary actions were successfully appealed, news of the success was not often as well-publicized as news of the disciplinary actions, leaving some physicians confused about their potential liability when prescribing opioids for pain. The confusion has perhaps increased as a result of two relatively recent cases, one where a physician was successfully disciplined by a state medical board for undertreatment of his patients’ pain, and another where the physician was successfully sued for inadequate pain treatment" To read this lengthy article in full, click on above link.
Some physicians are so opposed to use of opioids, they will go to any length they can to make it unavailable. See Subject: Texas State Board of Medical Examiners Proposed Change of Rule Chapter 170. Authority of Physician to Prescribe for the Treatment of Pain followed by TEXAS STATE BOARD OF MEDICAL EXAMINERS
Other Doctors who lose license:
Blytheville Doctor Loses License April 15, 2007
Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
ADVICE TO DOCTORS RE: PAIN MANAGEMENT
(or "What the government has taught doctors.")
Until wrongs are righted and procedural changes are made, physicians have little choice other than to be unusually suspicious of new patients, to require unnecessary and expensive tests, to waste time on excessive documentation, or to turn away suffering patients, even if they think the patients may not find anyone else to treat them.
If you're thinking about getting into pain management using opioids as appropriate:
If you are already prescribing opioids:
Initial Analysis of Hurwitz Retrial Verdict
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Obviously we wished he’d walked but when the jury finally came back just before 5pm, I believe it gave us reason to celebrate:
Major guilty verdicts came as to Timmy Urbani, who as a government agent confessed to Billy that he “had sold” some pills to Rita Carlin (five counts). Guilty also as to Rita Carlin herself (three counts). Obviously the jury did not accept Billy’s explanation that he thought that the reference was to an earlier period and that his subsequent dose was a tapering approach. Also as to Timmy’s wife Mary. (The sad thing from Billy’s perspective is that he would have fired Timmy but felt that he would also have to fire Mary, whom he believed to be in very serious pain.) For Kevin Fuller, the jury apparently decided that enough was enough, it convicted as to two counts that came latest in his care, did not decide (dismissed) the earlier prescriptions.
After the verdicts the jury was excused briefly and the judge heard from attorneys on whether she should dismiss the remaining counts or bring the jury back. The government wanted to get actual verdicts on the big dealers not decided (McCarter, Part of Fuller, Woodson, and one of the T. Urbani counts) because they were “big dealers”. The judge said, for her very sharply, that’s not a reason. She told Rossi that a huge amount of time and money had gone into the trial, followed by seven days of serious deliberation by jurors who were feeling financial hardship. Nope. Rossi suggested reversible and we’d only have to do the trial again. She rejoined, “do your best” if I’m reversed and you really want to do this again, be my guest. She also clarified that she was dismissing the charges, not declaring a mistrial.(He only gets another shot if she’s reversed.) I promise you, Rossi looked near to tears.
The import of the not guilty verdicts, aside from the obvious, is the “weight”. The not-guilty/dismissed verdicts involved significantly more pills than those on which there were convictions–Billy really was tapering these low-lifes.
Sentencing July 13. We still have work to do and it’s time for y’all to be heard. In the next few weeks, write to the judge. Let her know how respected Billy is, how hard the two years have been and how helpless he is to do any further harm since his state medical license is suspended.
Further gloating. As it came to be time for the verdict the government’s side filled up with those who wanted to see the victory. Mark Lyttle, one of the prosecutors last time around. McNulty, now Justice Department’s #3 guy who climbed on the backs of Northern Virginia docs to get there.
And so it goes. Let’s take a deep breath, keep on working and watch this space. Don’t forget to write and thank the lawyers. They know they’ve done well, but it never hurts to hear it again. And from me, many thanks to those who provided so much help during the trial. It was used. — MB
Mary Baluss, Esq.
The Pain Law Initiative
And THANK YOU! to Mary Baluss for taking the time and making the effort to keep us all coherently and accurately up to date. Great work, Mary. –..alex…
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source Initial Analysis of Hurwitz Retrial Verdict