I hope the jurors now deliberating the fate of Dr. William Hurwitz take a look at one of the exhibits in the case, a rumination he posted in a chat room in December of 2001. He was wrestling with the same question now facing the jury: What should a doctor who treats pain do when he discovers he’s got a problem patient?
Dr. Hurwitz, as I note in my Findings column, spent a couple of days on the witness stand last week defending the prescriptions for OxyContin and other opioids that he gave to what the prosecutor called his “bad patients.” I found him an impressive witness. During the intense cross-examination, he remained calm as he methodically explained his opioid treatments. He came across as someone who had immersed himself in medical literature – and was so focused on scientific abstractions that he might have been an easy mark for his more worldly patients. As they boasted in court, they knew how to fool him so he’d keep giving them opioids, which they were reselling and shooting up.
Dr. Hurwitz knew of the risks he faced — he’d had previous legal fights with the Drug Enforcement Administration — and he tried to cover himself by making his patients sign a contract. They had to agree to let him send their names and information about their prescriptions to the D.E.A., which he did regularly. They also had to promise to use the drugs only as prescribed, to avoid using illegal drugs and to submit to urine screens. Testing positive for illegal drugs was grounds for being dismissed.
But just because patients tested postive for cocaine, should a doctor dismiss the patients even if he still believed they desperately needed pain medicine? Prosecutors at the trial argued that Dr. Hurwitz was guilty of criminal conduct by ignoring such “red flags.” But Dr. Hurwitz felt it was unfair of the government to demand that a doctor abandon his patients, as he explained in that 2001 post.
The post was submitted to a chat room run by the Project on Pain Management and Chemical Dependency, which brought together doctors, patients, lawyers and law enforcement officials to discuss issues. Here are excerpts of Dr. Hurwitz’s post:
A state regulatory policy that conditions medical licensure on the willingness of physicians selectively to violate a duty of care to the individual patient seems to me unethical and dangerous. It deputizes physicians as policemen for the state and necessarily undercuts confidence patients must have in their doctors to enable intelligent, dignified, and compassionate care based on candor and mutual respect.
My position [the policy of excluding patients who use illicit drugs] is an expedient accomodation to the state’s police power and a recognition of my vulnerability in the current legal and social context. By having patients consent to strict obedience to the drug laws as a condition of my treatment, I shift the burden to the patient and relieve myself of the ethical dilemma. Patient “misbehavor” is converted into the breach of a contract, which I have the right to enforce. A nobler conception of the physician’s role, in my view, would dispense with such a contract and accept all patients as they are without precondition and in broad acceptance of human frailty, moral as well as physical.
P.S. I am finding it very difficult consistently to enforce my contract. I feel that I am imposing misery and pain on the patients who have misbehaved, as well as on their spouses or close associates. They and I believe that, once discharged from my care, no one will undertake to treat their pain, at least in the near future, and that my discharge amounts to condemnation to prolonged suffering and disability.
Dr. Hurwitz was certainly prescient about his “vulnerability in the current legal and social context.” Two months later, in February of 2002, he found out that a grand jury was investigating him. A lawyer advised him to close the practice “forthwith,” according to his testimony last week. He resisted at first, but made the decision in July to shut down at the end of the year. Closing the practice, though, wasn’t enough to protect him. The following year, 2003, he was arrested, and in 2004 he was convicted and sentenced to 25 years in prison. (He’s now being retried because the conviction was overturned.)
He was also prescient about the difficulties his patients would have finding another doctor to treat them. Two committed suicide, as I note in the Findings column. Others testified at the trial about their problems finding pain relief after Dr. Hurwitz shut his practice. Some of them, incidentally, had set off “red flags” under his treatment, but they insisted they weren’t drug dealers or addicts — just patients in pain who’d occasionally lapsed on their promise not to use any illegal drugs.
In retrospect, it’s clear what the smartest legal strategy would have been for Dr. Hurwitz: fire the problem patients right away. But let’s look at it from the less expedient perspective he took in 2001. What was the right ethical choice for a doctor in his position?