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Fate of McLean Doctor up to Jury

Jury continues to deliberate in trial of Northern Virginia pain doctor.

After hearing 21 days of testimony, 76 witnesses and exhibits from 31 notebooks containing thousands of pages of documents, an Alexandria jury of seven men and five women began deliberations last week in the trial of Dr. William E. Hurwitz, 59.

By The Connection's Tuesday presstime, the jury had deliberated more than 23 hours to determine whether prescriptions Hurwitz wrote for chronic pain patients, some who turned out to be criminal drug dealers, some addicted to opioids including OxyContin, warrant locking the McLean 'pain doctor' in federal prison.

"I was engaged morning, noon and night in my practice. I bent over backwards in terms of being available to my patients as much as I possibly could have," Hurwitz said Monday, Dec. 13, as the jury deliberated over his fate. "I felt I was doing the best I could as a doctor to relieve pain."

Many past patients came to the United States District Court in Alexandria to offer support the last six weeks of his trial.

“I know, in my mind, I did everything in good faith to help people,” Hurwitz said.

<b>HURWITZ, WHO CLOSED</b> his practice in December 2002, faces a 62-count indictment, including charges of conspiracy to traffic in controlled substances, drug trafficking resulting in death and serious bodily injury, illegal distributions, engaging in continuing criminal enterprise and health care fraud.

Hurwitz’s trial is not the typical case involving someone charged with conspiracy to distribute drugs.

The prosecution never claimed that Hurwitz directly profited from illicit drug sales.

His attorney Patrick Hallinan told the jury that Hurwitz's salary — $286,000 in 2001 and $317,000 in 2002 — was hardly extravagant for a Washington area physician, and small when compared to the amounts of money some former patients, now facing jail time, said they made selling the pills he prescribed.

"What in the devil is the motive in this case?" said Hallinan, during closing arguments on Wednesday, Dec. 8. "What did Tim Urbani get, he made $3 million [selling Dr. Hurwitz's pills,] Robert Woodson made $750,000 in two years. Where's the split? Where's the conspiracy? Where's the motive?"

Most counts carry a possible 20-year sentence, meaning Hurwitz could spend the rest of his life in prison if he is convicted on more than one of the most serious charges.

<b>THE 1,879,677 PILLS</b> Hurwitz prescribed for just 24 of the 400-plus patients he treated from 1998-2002 led to drug addiction, drug dependency and death, according to Assistant U.S. Attorneys Eugene Rossi and Mark Lytle. Because Hurwitz continued to prescribe medication to addicts who turned out to be selling many of their pills, and because he prescribed high doses without properly monitoring patients, he posed such a great a danger that he should be convicted as a drug dealer, argued the prosecutors.

"It is about reality, about the patients becoming hopelessly addicted and the reality of the patients selling the pills," Rossi said during closing arguments Wednesday, Dec. 8.

Rossi and Lytle presented 63 witnesses during the first 15 days of the trial, which included police officers, police detectives, forensic toxicologists, pain doctors, emergency rescue paramedics, emergency room physicians, Medicaid officials, benefit managers, patients convicted of selling prescribed pills, past patients who became addicted, and loved ones who watched the impact pain killers had on their family's lives.

"We are here because Linda Lalmond and Rennie Buras are not," Rossi said in closing statements, referring to two patients who died during treatment by Hurwitz from 1998-2002.

More than 60 people came to the courtroom to hear to Rossi's closing argument, including David Lalmond, Linda Lalmond's husband, Rennie Scott Buras II, 24, the son of Rennie Buras, and Paul "Andy" Nye, the husband of Mary Nye, whose daughters have filed a civil wrongful death suit against Hurwitz. All three men sat next to each other during Rossi’s closing arguments. Lalmond and Nye both cried.

<b>PROSECUTORS ACKNOWLEDGED</b> the care Hurwitz provided to many patients, including Molly Shaw, Sylvester Boyd and Dr. William Fleischaker — all who say Dr. Hurwitz saved their lives.

But this trial, according to Rossi, is about ruined lives, lives that could have been saved if Hurwitz recognized the "red flags" or warning signs of abuse, and terminated such patients, as the government’s expert witness Dr. Michael Ashburn testified Hurwitz should have done.

Hurwitz was sanctioned by the DC Board of Medicine in 1991 and the Virginia Board of Medicine in 1996. Some of the cases in the 1996 order are similar in nature to the charges covered in the trial. Lives would also have been saved if Hurwitz followed the lessons he learned in the 1996 course, "The Drug Seeking Patient," taught by Dr. William Vilensky, Rossi said.

The Virginia Medical Board ordered Hurwitz to take Vilensky’s course after his license was revoked. Hurwitz scored the highest on the examination at the end of the course, but when Hurwitz went back from the classroom to the doctor's office, he didn't translate the lessons learned, prosecutors said.

Bret McCarter, 39, for example, requested 45 early refills for prescriptions, and testified that he used women's make-up on his arms to cover track marks from injecting medications.

"At the end, he would always continue writing the prescriptions," McCarter testified.

"Regulatory authorities bent over backwards to try to get the defendant to do the right thing and every time he came to the fork in the road, he did the wrong thing and he did it time and time again," Rossi said.

<b>APPROXIMATELY 15 </b>former patients convicted of conspiracy to distribute OxyContin prescribed by Hurwitz, most from Manassas and many related to each other, testified against their former doctor.

Cindy Horn, 43, testified that her life improved when she went to jail for selling pills and was forced into detox from OxyContin. "After I got off the pills, I felt like I was 18 again," Horn testified.

Many blame Hurwitz, such as Timothy Urbani, 34, who is sentenced to 20 years in prison. "I wasn't there for my kids for three to four years, now I won't be there for a long time."

One patient, Kevin Leroy Fuller, 42, called Hurwitz naive, but a doctor who was always concerned; Fuller still calls Hurwitz his friend.

All said they had fooled doctors in the past to get OxyContin and other pain pills.

“These are pros and Dr. Hurwitz never had a chance,” said Hallinan.

Prosecutor Rossi had a different interpretation.

"You let all those patients jeopardize your entire practice, true?” Rossi asked during his cross-examination of Hurwitz, when the doctor took the witness stand Dec.6-7.

"True," Hurwitz said.

“The effects were foreseeable, true?” Rossi asked.

“No, I didn’t foresee it,” said Hurwitz.

<b>PAIN DOCTORS WHO DON’T</b> get duped once in a while, probably aren't treating pain aggressively enough, according to Dr. Steven Passik, an expert witness for the defense, following his testimony. Passik is the director of Symptom Management and Palliative Care at the Markey Cancer Center in Lexington, Ky. "Everybody can beg fooled," Passik said.

About 10 percent of Hurwitz’s patients, according to his former nurses Susan Cruz, of Herndon, and Ann Wierbinski, were problematic patients who they wanted out of the practice. Cruz testified that Hurwitz told her they might be exhibiting a social bias against these patients; Wierbinski testified that Hurwitz thought he could treat their pain while also treating their addiction.

"Predators," say Hurwitz's attorneys Hallinan, Marvin Miller and Kenneth Wine.

Although certainly not saints, these patients were "human beings [who] didn’t deserve the treatment they received,” Rossi said.

<b>NO MATTER WHAT</b> the jury decides this week, doctors, pain patients and pain advocates across the country have taken notice of the Northern Virginia doctor's case.

"Doctors have been given the notion that you, as a physician, will be held criminally responsible if a patient turns out to have a substance abuse problem or addiction," said Siobhan Reynolds, president of Pain Relief Network. "How are they supposed to know? The Drug Enforcement Agency seems to be requiring for physicians to drug test all potential patients, to do background checks, and look at fixable income to assure to protect themselves, if they were crazy enough to treat chronic pain patients."

The damage, Reynolds says, will ultimately harm the legitimate patients with chronic pain, which the Association of American Physicians & Surgeons estimates to be 50 million people.

"The more they scare off the doctors, what happens to the millions like me?" said Sylvester Boyd, a past patient, after testifying in support of Hurwitz on Dec. 2.

Molly Shaw flew from New Mexico to Northern Virginia to see Hurwitz because doctors in her state were too fearful to prescribe Dilaudid to her control migraines, she testified.

Dr. William Fleischaker, a retired physician, flew from Arizona to be treated by Hurwitz.

"Look what happens when law enforcement sets the standards," Hallinan said. "What's the matter with medicine?"