Physicians' intents should be considered in pain cases

A federal appeals court overturned drug-trafficking convictions of controversial, high-profile pain specialist William E. Hurwitz, MD, because the trial judge told the jury it could not consider the doctor's good-faith intentions for treating his patients.

While the ruling improved Dr. Hurwitz's odds of escaping a 25-year prison sentence, experts were hesitant to say whether it will make it more difficult to prosecute physicians who use opioids and other controlled substances to treat chronic pain.

"Exactly what this means and what the consequences will be not only for Billy Hurwitz but for other similarly tried and convicted doctors is unclear," said Ronald T. Libby, a political scientist at the University of North Florida who is writing a book, Medical McCarthyism: The War on Doctors, about criminal prosecutions of physicians.

A three-judge panel from the 4th U.S. Circuit Court of Appeals last month ruled that the trial court "erred by concluding that good faith is not relevant when a registered physician is charged with violating" federal drug-trafficking laws. In December 2004, a jury convicted Dr. Hurwitz of 50 counts of drug trafficking, including one count of drug trafficking resulting in death. But the jury found the physician, who first gained notoriety when he was profiled on TV's "60 Minutes," not guilty on two counts of health care fraud for which it was instructed to consider good faith.

"We are very gratified that the court of appeals unanimously agreed with us that a doctor is entitled to present a defense that he believed in good faith that his medical care for patients conformed to professional responsibility," said Lawrence S. Robbins, Dr. Hurwitz's attorney.

"We look forward to the opportunity to try Dr. Hurwitz's defense under appropriate legal conditions."

The U.S. Attorney's Office for the Eastern District of Virginia may ask the full 12-judge court to issue an opinion, but spokesman Jim Rybicki said that is unlikely. At press time, a decision on whether to retry Dr. Hurwitz was pending.

Observers said the jury's willingness to acquit on the health care fraud charges augurs well if there is a retrial. "The implication is that if the jury was told they could apply good faith to the drug-trafficking charges that you might get a different outcome," Libby said. "That's the hope."

L. Jean Dunegan, MD, an Ypsilanti, Mich., pain specialist and lawyer who frequently lectures on the law and ethics of prescribing opioids, greeted the appellate ruling as good news for pain physicians.

"All of us who treat pain will be deceived by patients who are dead set about putting on a great show and using our compassion against us," she said. "Our good-faith efforts should be a prominent part of how every physician is judged when their prescribing efforts come into question."

Samuel Rosenthal, a lawyer who filed a friend-of-the-court brief in the case on behalf of the American Pain Foundation, the National Pain Foundation and the National Foundation for the Treatment of Pain, agreed the decision is a good one for doctors. He said the decision clarifies that good-faith jury instructions are required.

"The law was in flux," he said. "This opinion will go far in making clear what was somewhat muddled."

Ruling might not impact other cases

But lawyers and physicians involved in the legal defense of other pain doctors charged with drug trafficking are not as optimistic that this ruling could make a difference in these types of cases. They said it's unusual for a judge to explicitly instruct a jury that it cannot consider a physician's good-faith intentions, as was done in Dr. Hurwitz's case.

"In my experience, the good-faith instruction is given," said Eli Stutsman, an attorney for two pain physicians who have been tried and convicted on drug-trafficking charges. In addition, experts are puzzled about the implication of the 4th Circuit's decision that "the inquiry into the doctor's good faith in treating his patients ... must be an objective one," rather than a subjective one.

"If all you're doing is looking at what the medical community's standards are, then you've got the worst possible world where really you are just doing a malpractice case" in a criminal court, Rosenthal said.

Scott Fishman, MD, immediate past president of the American Academy of Pain Medicine, which also filed an amicus brief in the case, agreed that an objective good-faith standard could be problematic.

"Often the courts believe that medicine has a scanner for everything, that we can do a test and get evidence about anything," Dr. Fishman said. "But when you're talking about pain or a physician's intent, it's very hard to have objective proof."

Looking for definition

Roger S. Cicala, MD, a Memphis pain specialist who frequently testifies for the prosecution in these cases, said that with the ruling in Dr. Hurwitz's case, physicians "got more gray [rules], but [doctors] desperately want some black-and-white rules."

On that front, the American Medical Association has met a handful of times with DEA officials to express the need for a balance between pain management and diversion control in new federal guidelines that are being developed to replace ones withdrawn in October 2004.

The discussions have been "collegial," said AMA Secretary Rebecca J. Patchin, MD, a Riverside, Calif., anesthesiologist and pain specialist. The DEA, she said, may propose new guidelines as soon as mid-September.

The AMA did not file a brief in Dr. Hurwitz's case.