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The Pain Relief Quandary



Suzanne Wills, Drug Policy Chair

February, 2005

Two drug policy events occurred last year that got very little publicity but will probably affect most Americans at some time in their lives. These were the Drug Enforcement Administration's suddenly rescinding its prescribing guidelines for opioids and the subsequent conviction Dr. William Hurwitz, a McLean, Virginia pain specialist, for drug trafficking.

The guidelines for opioids, which took the form of a "Pain FAQ" on the DEA’s website, were the result of a multi-year collaboration between the DEA and prominent pain specialists. They were posted in August, 2004 and hailed as a balance between the DEA and the pain management community. They were abruptly removed less than two months later and replaced with guidelines that stiffened the DEA's attitude toward what it termed improper prescribing. The DEA said the previously agreed upon guidelines "contained misstatements" and were “not approved as an official statement of the agency." An open letter, signed by the presidents of the American Pain Society, the American Academy of Pain Medicine and the American Society of Addiction Medicine, called the new DEA guidelines "an unfortunate step backward" that will only lead to "an adversarial relationship between doctors and the DEA."

Before their removal, Dr. Hurwitz's defense team had sought to introduce the original guidelines as evidence in his trial. An attorney for the defense said, "If the Justice Department followed the guidelines, there would be no reason to arrest and charge Dr. Hurwitz." An attorney for the Justice Department asked that they be excluded, saying that they do "not have the force and effect of law."

The government did not allege that Dr. Hurwitz ever sold or profited from the sale of drugs. He was convicted of trafficking and sentenced to 63 years in prison because 5-10% of his patients were misusing the painkillers he prescribed, selling them, or both. Prosecutors said his income as a physician was boosted by fees from patients who were faking or exaggerating their pain. All the patients who testified against Dr. Hurwitz were serving prison terms and had benefited from plea bargaining arrangements.

After Dr. Hurwitz’ conviction, Dr. C. Stratton Hill, president of Texas Cancer Pain Initiative of Texas wrote, “With the DEA disavowing their August Q and A document and their Interim Policy Statement in the November 16th issue of the Federal Register, coupled with the present actions of the Texas State Board of Medical Examiners, any Texas physician (or any physician anywhere for that matter) who treats pain adequately with opioids needs to have his/her head examined.”

Follow up to Nov., 2004 article, “King v. Mothers”: Texas Attorney General Greg Abbott has ruled that physicians are not required to report the use of illegal drugs by pregnant women to law enforcement officials. His ruling states that “individual” does not include “an unborn child” for purposes of the Family Code.

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