Conviction Of McLean Pain Doctor Overturned
Appeals Court Says Judge Erred in Jury Instructions

By Jerry Markon
Washington Post Staff Writer
Wednesday, August 23, 2006

A federal appeals court threw out the conviction of William E. Hurwitz yesterday, granting the prominent former Northern Virginia pain-management doctor a new trial because jurors were not allowed to consider whether he prescribed drugs in good faith.

The decision again galvanized the national debate that the Hurwitz case had come to symbolize: whether fully licensed doctors prescribing legal medication to patients in chronic pain should be subject to prosecution if their patients abuse or sell the drugs. Patient advocate groups strongly supported Hurwitz and expressed concern that his conviction would have a chilling effect on pain doctors.

The Richmond-based U.S. Court of Appeals for the 4th Circuit acknowledged that prosecutors presented "powerful" evidence at Hurwitz's trial that was "strongly indicative of a doctor acting outside the bounds of accepted medical practice." Hurwitz was convicted in December 2004 of running a drug conspiracy from his McLean office, causing the death of one patient and seriously injuring two others.

But a three-judge panel concluded that U.S. District Judge Leonard D. Wexler improperly told jurors that they could not consider whether Hurwitz acted in "good faith" when he prescribed large amounts of OxyContin and other painkillers -- in one instance, 1,600 pills a day.

"We cannot say that no reasonable juror could have concluded that Hurwitz's conduct fell within an objectively-defined good-faith standard," the judges wrote, adding that Hurwitz presented evidence that he ran a legitimate medical practice and believed that his prescriptions were "medically proper."

Patient and medical advocates hailed the decision. "It's about time that courts start to realize that these are doctors, not drug dealers," said Kathryn Serkes, a spokeswoman for the Arizona-based Association of American Physicians and Surgeons.

The ruling sends the case back to U.S. District Court in Alexandria for another trial. Hurwitz's attorney, Marvin D. Miller, said the "good faith" argument ran to the core of Hurwitz's defense because "he believed what he was doing was helping patients with their pain."

"My colleagues on the other side overreached in this case and tried to exert federal control over the practice of medicine," Miller added.

James Rybicki, a spokesman for U.S. Attorney Chuck Rosenberg, said prosecutors are reviewing the decision and "studying our options on how to proceed." The government could appeal to the entire 4th Circuit or the U.S. Supreme Court.

Hurwitz was perhaps the most prominent physician targeted in a federal crackdown on the abuse of OxyContin and other painkillers. His conviction capped a three-year investigation into doctors, pharmacists and patients suspected of selling potent narcotics and fueling an epidemic that ravaged Appalachia and triggered other crimes.

Prosecutors portrayed Hurwitz as a common drug dealer whose waiting room was filled with sleeping and incoherent patients with track marks on their arms. More than 20 former patients of Hurwitz's testified at the trial; most had been convicted of drug crimes. Defense attorneys portrayed Hurwitz as a caring and courageous doctor who put his patients' welfare above his own.

Jurors convicted Hurwitz on 50 counts of a 62-count indictment, including conspiracy to distribute controlled substances. They acquitted him on nine counts and deadlocked on three. Hurwitz was sentenced to 25 years in prison.

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