Jacob Sullum

At a recent congressional hearing, Joseph Rannazzisi, an official in the Drug Enforcement Administration's Office of Diversion Control, proclaimed his agency's "firm commitment to the balanced policy of promoting pain relief and preventing the abuse of pain medications." The DEA, he said, wants to "help physicians meet the challenge of ensuring that people who medically need drugs get them, and that those who are diverting them don't."

This "balanced policy" is a "challenge" because pain cannot be verified objectively. The only sure way of "preventing the abuse of pain medications" is to stop treating patients with them, which would leave millions of people in agony. The alternative, trusting patients when they say they're in pain, means taking a chance that some of them are faking or exaggerating, seeking narcotics to get high or to sell on the black market.

Fortunately, the DEA is there to help by arresting doctors who trust their patients too much. The day after Rannazzisi testified before a subcommittee of the House Judiciary Committee, one such doctor, William Hurwitz of McLean, Va., was sentenced to five years in federal prison.

That punishment was much lighter than the 25-year sentence Hurwitz had received after his first "drug trafficking" trial, but it was still pretty severe for someone who had not actually engaged in drug trafficking. Hurwitz's crime was prescribing painkillers for patients who turned out to be addicts or drug dealers.

In his first trial, the Justice Department argued that it did not matter whether Hurwitz had prescribed those pills in good faith, and U.S. District Judge Leonard Wexler instructed the jury accordingly. A federal appeals court disagreed and ordered a second trial.

In addition to new jury instructions, Hurwitz benefited from a more open-minded judge this time around. Although U.S. District Judge Leonie Brinkema said she was initially inclined to agree with the prosecution that the doses of narcotics Hurwitz had been prescribing were "absolutely crazy," the defense persuaded her that "an increasing body of respectable medical literature and expertise supports those types of high-dosage opioid medications" for patients suffering from severe chronic pain.

Before the case went to the jury, Brinkema dismissed three charges that carried 20-year mandatory minimum sentences, finding that the prosecution had not provided enough evidence to show that Hurwitz's prescriptions had resulted in the death of one patient and the severe injury of two others. The jury convicted him on 16 counts, compared to 50 in the original trial.

Instead of the life sentence the prosecution wanted, Brinkema chose a term of 57 months, most of which Hurwitz already has served. While the jury concluded that Hurwitz should have paid more attention to warning signs that some of his patients were not on the level, Brinkema noted that the vast majority of his patients were legitimate and that the rest had taken steps to deceive him.

In a sense, Hurwitz was lucky. Yet what doctor wants to take a chance of ending up in a situation anything like his, where honest mistakes could be treated as felonies?

Rannazzisi emphasized that the DEA investigates only a tiny percentage of doctors each year. But the chilling effect of cases like Hurwitz's extends far beyond the few who lose their prescription privileges or go to prison.

According to the DEA's reading of the Controlled Substances Act, a doctor who believes he is practicing good medicine is still breaking the law if he operates outside "the usual course of professional practice." Defense attorney John Flannery, who testified at the same hearing where Rannazzisi appeared, noted that one of his clients, now serving a 30-year sentence for prescriptions the DEA considered inappropriate, was accused of violating "professional norms" by prescribing more than 160 milligrams of OxyContin a day, one-sixth the maximum covered by Medicaid.

When inadequate treatment is the usual course of professional practice, doctors must be brave simply to prescribe the pain medication their patients need to function.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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