Same Day Multiple Prescriptions
 Why is Our Government Pursuing a War on Doctors?

Free Electronic Newsletter

Virginia Pain Doctor’s Sentence Reduced - A Pyrrhic Victory

By Deborah Hellman, J.D., and Diane Hoffmann, J.D., MPH
University of Maryland School of Law
July 24, 2006

On Friday, July 13th, Dr. William Hurwitz, a prominent Virginia doctor who specialized in the treatment of patients in chronic pain was sentenced to 57 months in prison. Having already served 2 and 1/2 years of a 25 year sentence as a result of his first trial (later reversed by the 4th Circuit), this new sentence is being generally portrayed as a victory for Hurwitz. But is it? And is it just and likely to lead to good policy?

The answer to each of these questions is emphatically no. The fact that the sentence seems light in comparison to what might have been is really no consolation for Hurwitz, his family and patients in chronic pain. U.S. District Judge Leonie M. Brinkema introduced her pronouncement of the sentence by saying that striking a "careful balance is the right approach" – referring to the balance between assuring that opiate drugs are not abused or sold by patients and continuing to make them available to the legitimate patients in terrible pain for whom they offer the best chance of returning to a normal life. She recognized that the sentence in this case would have an impact on other pain doctors and on their willingness to prescribe the high doses of opiate-based drugs like Oxycontin that are often necessary to treat or at least ameliorate the suffering of patients with intractable pain.

But “balance” isn’t necessarily what we ought to be after here if “balance” means simply finding the middle ground between two poles. Sometimes the reasons on one side are more important and simply finding a solution somewhere in the middle fails to do justice to the relative weight of each side.

Convicting a doctor for drug dealing, one would think, would require that the doctor sold the prescriptions for money, sex or some other quid pro quo. While the prosecution attempted to argue that Dr. Hurwitz’s income substantially increased during the time he treated chronic pain patients, the judge emphatically stated that there was no evidence of any financial or other benefit to the defendant as a result of his prescribing practices. Rather she said, in rejecting a motion for acquittal or a new trial, that there had been sufficient evidence that a “reasonable person would have known” that his patients were using or dealing and that the doctor had turned a blind eye and "deliberately ignored" signals indicating his patients were abusing his trust and thus passed from being a professional healer to a dealer.

This standard - a fusion of negligence and willful blindness - is not the appropriate standard by which to draw this line. First, it seems to be more akin to a civil standard - by requiring a doctor to act as a reasonable physician would act - than a criminal standard. Second, it warns doctors not to trust their patients and instead to constantly reevaluate their candor and conduct.

This problematic standard, crafted by the court, stems from difficulties applying the statutory language for criminal behavior in the Controlled Substances Act. The Act requires that prescribing be for a "legitimate medical purpose" by a practitioner "acting in the usual course of professional practice." This standard is uncomfortably close to the civil standard in a medical malpractice case which asks whether the physician was acting according to accepted standards of care. Under the civil standard, the physician is to act in conformity with established medical custom practiced by minimally competent physicians treating similar patients in similar circumstances. A physician is not necessarily liable for an error of judgment or an undesirable result. Under either standard, physician experts are typically brought to court by both sides to testify about whether the defendant doctor was practicing/prescribing appropriately. The difference between what is done in "the usual course of professional practice" or for a "legitimate medical purpose" and what is the accepted standard of care is simply too close to attempt to draw a line between what constitutes civil liability and criminal behavior. The standard provides no guidance to physicians as to when they have crossed the line. (Nor, have the myriad of court opinions on the issue helped clarify the boundaries.)

The "willful blindness" standard articulated by the judge is somewhat better, though problematic for different reasons. It requires that doctors adopt an investigative attitude toward their patients, an attitude more appropriate to law enforcement than to medical practice.

Such "law enforcement" behavior implied by the higher "willful blindness" standard arguably breeds both distance and distrust between doctors and their patients. This seems especially unfortunate in the case of those doctors treating patients in chronic pain. Is it really good doctoring, or does it require the forswearing of those qualities that patients often most need, particularly those patients often abandoned by doctors because of the difficulty of their cases and whose integrity has been assaulted by doubting friends, co-workers and other doctors unfamiliar with chronic pain. After all, the willfulness referred to in the standard is culpable - when it is legitimately employed - because the person is deliberately blind in order to profit in some respect. For example, the drug currier is willfully blind to the fact that the pouch he carries contains drugs because if he knew he would either have to forgo the fee for transporting the sensitive package to its destination or risk doing so knowingly. But Dr. Hurwitz failed to investigate his patient not out of self-interest (nor even to further the interest of a deviant client in continuing a prohibited addiction). Rather he was willfully blind because he believed it was his role to show his patients trust and treat them with respect.

The result of employing a "willful blindness" standard and the resulting five year sentence may have serious repercussions. Not only may it further reduce the number of physicians willing to treat chronic pain sufferers, it may also lead those who continue to treat these patients to adopt a distrustful attitude toward them in order to stay clear of the law. After all, for most physicians, as for most of us, 57 months is not something to take lightly.