According to a jury in Virginia, a doctor can genuinely believe he is treating pain by prescribing opioids, have no intent to sell drugs, make no money at it and otherwise behave as a compassionate healer -- and still deserve to go to prison like a street pusher a result.
That's the essence of the bizarrely mixed verdict in the trial of William Hurwitz, in which the pain doctor was convicted of 16 counts of drug trafficking. Hurwitz originally faced 50 drug-related charges, including trafficking resulting in death -- but the judge dismissed the 17 most serious charges and the jury acquitted him on 17 other counts.
John Tierney of the New York Times (who has been a hero to pain patients on this issue and is one of the few mainstream journalists to cover it comprehensively) interviewed three of the jurors to try to make sense of the verdict.
One told him, describing patients who faked pain to get drugs to sell, "Those patients used the doctor shamelessly...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."
Said another, "There was no financial benefit to him that was very evident to us...It was a really hard case for all of us. I think that Dr. Hurwitz really did care about his patients."
Nonetheless, he was convicted of drug trafficking "knowingly and intentionally" and "as conventionally understood." The jurors explained their decision by saying that he "fell down on the job" and missed "red flags" that should have told him that the patients were not what they seemed.
When asked whether that should have simply resulted in a malpractice judgment, rather than a criminal conviction, one said, "I don't know that I know enough to be clear about that gray area between malpractice and out of bounds [the criminal standard]." Another said, "We had to just go with our gut."
This is not justice. A law that can produce such muddle-headed thinking cannot stand. How can doctors be expected to treat pain in these circumstances? If you can be convicted of drug trafficking for failing to detect an addict's lies -- or for simply believing that addicts are human beings who can suffer pain and addiction simultaneously -- why on earth would you take the risk?
Says Siobhan Reynolds of the Pain Relief Network, "They said that he 'fell down on the job.' The question is, 'What's the job?' Hurwitz didn't fail as a doctor, he failed as a law enforcement officer."
She adds, "What this indicates in a society-wide acceptance of the law enforcement role imposed on medicine by the Controlled Substances Act. It is a fully unexamined assumption, unexamined by organized medicine, ethicists or human rights groups."
Do we as a society really want physicians to serve first as police officers, and only if we are judged innocent of addiction or the potential for it, only then to treat pain? Do we want doctors to have as their primary mission a goal of stopping the supply of drugs (even though they are completely ineffectual at it since they can only marginally affect the supply of legal drugs and have no effect at all on the illegal ones) -- or preserving health? When you see your doctor, do you want to be treated as a criminal suspect -- or as a human being?
We can either have our current drug laws -- or compassionate care for pain patients. The Hurwitz case shows that we cannot have both.