08/23/2006 03:26 pm ET Updated May 25, 2011

Win for Pain Pts: Docs Can't "Unconsciously" Become Drug Dealers

There's been precious little good news for pain patients in the last few years-- amidst reports that drugs like Vioxx, Celebrex, Advil, Aleve and even Tylenol are less safe than previously believed, the only painkillers that are not reported to increase risk for stroke, liver damage, gastrointestinal bleeding and/or heart attack, the opioids, have been attacked as dangerously addictive. The bad news has also included reports on decades-long sentences for "drug trafficking" for the few doctors who nonetheless continued to prescribe opioids in doses high enough to help those with chronic, intractable pain.

Finally, I can report a glimmer of hope. Yesterday, a three-judge panel representing the federal Court of Appeals for the Fourth Circuit overturned the conviction of renowned pain specialist and opioid advocate William Hurwitz. Hurwitz had been sentenced to 25 years in prison on drug trafficking and fraud charges-- but the judges ruled that the jury instruction in his case had "effectively deprived the jury of the opportunity to consider Hurwitz's defense."

Hurwitz did not dispute that he had prescribed the high dosages of the drugs in question-- nor did he dispute that some of his patients were addicts as well as pain patients. The case turned on whether his prescribing was within or outside the bounds of medical practice.

Normally, if a doctor practices substandard medicine (and violates the "standard of care"), he only faces civil charges, like malpractice, even if a patient dies. But in this case, the government charged that even though Hurwitz may have believed he was practicing good medicine, he was actually acting as a criminal drug dealer. The jury instructions did not allow consideration of whether Hurwitz thought he was practicing medicine "in good faith."

The appeals court decided, in essence, that a doctor cannot unconsciously become a drug dealer-- and that by not allowing a "good faith" defense, the lower court put Hurwitz in an impossible position. Doctors are supposed to be able to prescribe controlled substances "for a legitimate medical purpose in the usual course of medical practice," according to the Controlled Substances Act.

However, if a prosecutor decides that a medical purpose is not legitimate-- and an accused doctor is not allowed to present a defense that shows that he believes that it is-- convictions are guaranteed and we have effectively turned the Justice Department into a national medical board, which can decide at its whim that certain doses of controlled substances for certain patients are illegal. This is why the specialist group that represents pain doctors filed an amicus brief in support of Hurwitz-- as did the National Pain Foundation, the American Pain Foundation, the National Foundation for the Treatment of Pain and two of the nation's top academic pain experts.

As Pain Relief Network founder Siobhan Reynolds put it, that situation, "supports my argument that it's so convoluted and the stakes are so high that few doctors are now willing to prescribe opioids for chronic pain."

The prosecution has not yet said whether it will appeal to the full Fourth Circuit for another decision or appeal directly to the Supreme Court. A Supreme Court appeal might be risky for the Justice Department because it was recently smacked down by the Supremes on this issue in another case. In Gonzales v. Oregon, the Court ruled that the state of Oregon was free to decide that assisted suicide fell within the boundaries of medicine under the Controlled Substances Act. The Justice Department had argued that it had the right to determine that assisted suicide was not a "legitimate medical purpose" under the act-- but the Court ruled that those decisions are up to the states.

Whatever happens next, this is a step in the right direction for pain patients and their doctors-- who can celebrate a much-needed victory. But the media unfortunately still largely doesn't understand the significance of these cases (for a look at a particularly biased AP story, see here)-- and many people remain unaware how tenuous their ability to get effective treatment for pain currently is. Let's hope more people get behind the advocates and force the Justice Department to get out of the way of pain medicine. Unless we really want to live in a country where doctors can be charged with becoming drug dealers without having profited from it or even known they were doing it!