Pain Management Dr. William E. Hurwitz Prescription Drugs

On April 14, 2005, the day Dr. William E. Hurwitz was sentenced to 25 years in prison, Karen Tandy called a news conference to celebrate the sentence and reassure other doctors. Ms. Tandy, head of the Drug Enforcement Administration, held up a plastic bag containing 1,600 opioid pills.

"Dr. Hurwitz prescribed 1,600 pills to one person to take in a single day," she announced. This bag showed that he was "no different from a cocaine or heroin dealer peddling poison on the street corner," she said, and made it "immediately apparent" that he was not a legitimate doctor.

"To the million doctors who legitimately prescribe narcotics to relieve patients' pain and suffering," Ms. Tandy said, "you have nothing to fear from Dr. Hurwitz's prosecution."

Next week, Ms. Tandy will have another photo opportunity, when Dr. Hurwitz is again sentenced in federal court, after the reversal of his conviction and a retrial this year. But this time, Ms. Tandy may want to skip the show-and-tell.

Counting pills is a prosecutor's trick, not a proper gauge of medical practice, and the trick didn't even work at the retrial.

Dr. Hurwitz was cleared of most of the charges on which he was previously convicted, including the one involving the patient who received the prescription brandished by Ms. Tandy. The defense successfully argued that the patient was not a drug dealer and that Dr. Hurwitz never intended to give him 1,600 pills a day - that number was the result of a clerical error, not a plot to sell drugs. None of the jurors I interviewed considered Dr. Hurwitz anything like a street drug dealer, and they were appalled to learn after the trial that he had already served more time in prison than some of his patients who were caught reselling the drugs.

The only lesson for doctors I can see in Ms. Tandy's bag of pills is, "Be afraid."

No matter what you have learned in medical school, if you are prescribing opioids in doses that seems high to narcotics agents and prosecutors, you are at risk of a trial. And once you enter the courtroom, anything can happen.

At the first trial, Dr. Hurwitz was convicted of writing prescriptions that caused bodily injury, crimes that carried a mandatory minimum sentence of 20 years. At the retrial, the judge dismissed the charges for the very good reason that there was no proof the prescriptions actually caused the injuries.

At the first trial, the 1,600-pill argument carried the day with the jury. The foreman cited that number in explaining to The Washington Post why, even though he was "not an expert," he was sure Dr. Hurwitz was not a "legitimate" doctor, because the number of pills went "beyond the bounds of reason." In Dr. Hurwitz's retrial, the prosecution tried the same strategy by repeatedly mentioning the 1,600 pills and other high-dosage prescriptions. The defense presented reams of expert testimony that there was no recognized upper limit on the level of opioids that should be prescribed. Some chronic-pain patients need enormous amounts because they develop a tolerance.

One of those patients was Patrick Snowden, the man who was prescribed the 1,600 pills. His mother wrote Dr. Hurwitz a letter praising him for giving her son his life back by enabling him to deal with the pain of a foot injured so badly that he had undergone nine operations and been advised to amputate it.

There was no evidence that Mr. Snowden resold any of the pills prescribed by Dr. Hurwitz, including the famous 1,600 pills. According to the defense, that scary number was a one-time fluke resulting from a clerical error when Mr. Snowden was given two new prescriptions for pills of a lower strength because his pharmacy had run out of the usual pills. The defense maintained that Dr. Hurwitz never intended Mr. Snowden to take 1,600 pills in one day and that Mr. Snowden never did take them because he realized what his proper dosage was.

The prosecution fixated on the pill counts of other patients, too, often to baffling effect, because the only thing that seemed to matter was the number of pills, not their strength. When an F.B.I. agent, Aaron Weeter, prepared an elaborate chart listing the number of pills received by Dr. Hurwitz's patients, he was questioned about its usefulness by Larry Robbins, a defense lawyer.

"Would you agree that, standing alone, we can learn nothing very important from the pill count alone?" Mr. Robbins asked.

"I'm not qualified to answer the question," Mr. Weeter replied.

Mr. Robbins tried working through the math with him. Wouldn't two 40-milligram pills be no more potent than a single 80-milligram pill? But the agent stood by his pill-count charts.