Pain doctor again found guilty of drug trafficking

A "good faith" jury instruction is not enough to free the polarizing physician.

By Kevin B. O'Reilly, AMNews staff. May 21, 2007.

The high-profile federal conviction of a Virginia physician who has long battled authorities over his controversial chronic-pain practice has some doctors worried that the guilty verdict might worsen patient access to adequate pain treatment.

William E. Hurwitz, MD, was found guilty on 16 counts of drug trafficking in federal court last month. The jury acquitted him of 17 other counts and was unable to reach a verdict on 12 counts that then were dismissed by Judge Leonie M. Brinkema. Citing a lack of evidence, the judge earlier dismissed the most serious charges involving bodily injury or death.

The closely watched verdict came less than a year after the 4th U.S. Circuit Court of Appeals overturned Dr. Hurwitz's 2004 conviction and 25-year sentence on the drug-trafficking charges, saying the judge in the original trial wrongly instructed the jury to ignore the physician's good-faith intent when deliberating the case.

Russell K. Portenoy, MD, said he was "pretty discouraged" by the outcome. Dr. Portenoy, chair of the Dept. of Pain Medicine and Palliative Care at Beth Israel Medical Center in New York and a past president of the American Pain Society, said that while criminal prosecutions of physicians for prescribing opioids are "extremely rare," this kind of spotlighted verdict makes doctors nervous.

"When the government decides to criminalize prescribing behavior, it has a profound effect on the prescribing by physicians of all types," said Dr. Portenoy, a pro bono expert witness in Dr. Hurwitz's defense. "It could lead to even greater reluctance to prescribe opioids in this country, and that leads to undertreated pain."