By HARVEY SILVERGLATE  |  September 26, 2007

Pain in the FAQ
In a criminal case similar to Zolot’s, Virginia-based Dr. William Hurwitz, an outspoken advocate of opioid therapy for chronic-pain suffers, was indicted on dozens of counts of drug trafficking, conspiracy, and even running a criminal enterprise. Unfortunately for Hurwitz, his defense team not only needed to prove that he treated his patients in “good faith.” It also had to demonstrate that Hurwitz’s prescribing practices were “in accordance with established medical norms.”

Since the DEA’s own FAQ booklet attempted to define those norms, Hurwitz’s defense lawyers had hoped to use the pamphlet to defend their client. But once the DEA, recognizing the FAQ’s utility to the defense, had removed the document from its Web site, it no longer constituted official government policy and was therefore of no legal help.

Had the document been allowed into evidence as the official government position, however, it would have demonstrated the difficulties doctors face when trying to define an “objective” standard of good faith. It also would have given jurors a list of “red flags” that physicians should consider when they suspect a patient is seeking a narcotic “fix” rather than legitimate medical advice and treatment. And in an “important disclaimer,” it would have warned that “lack of strict adherence to these suggestions does not imply that a particular practice is outside the scope of legitimate medical practice.” The scientific literature is “limited,” the DEA literature had concluded, and there is “multifaceted controversy” by experts in their field.

With that pamphlet, the government had come dangerously close to acknowledging the realities of modern pain medicine. Instead, it retreated from the FAQ because it considered winning the Hurwitz case to be more important than clarifying proper treatment of chronic pain.

In fact, while Hurwitz’s trial was in progress, the DEA updated its Web site to state that the document in question was withdrawn because it contained misstatements. But this past June, Mark Caverly, the head of the liaison and policy section for the DEA’s Office of Diversion Control, finally “acknowledged the Hurwitz trial was one reason the FAQ were pulled,” according to New York Times Magazine reporter Tina Rosenberg.

With no clear guidelines in place, then, the federal government continues to make examples of prominent pain doctors around the country, such as Hurwitz and Zolot. So far, it’s been a largely successful strategy, in that it has forced all pain doctors to screen their patients more carefully. But at what cost?

Not once since the deletion of the FAQ document from the DEA’s Web site has the government seriously sought to cooperate with leaders in the medical profession to define, once and for all, illegal medical practices in the area of pain management. Such an effort would allow legitimate medical practitioners to feel more comfortable prescribing opiate therapy and to help patients manage their chronic pain and regain control of their lives. Plus, it would facilitate the government’s ability to punish doctors who do in fact cross that line between good- and bad-faith medicine.

The medical profession may not like having federal bureaucrats play such a large role in defining professional standards, but its overt clarification of rules would be a major improvement over the current system, in which doctors have no idea when their medical judgments might land them in prison.

Harvey Silverglate is writing a book on federal prosecutorial tactics tentatively titled Three Felonies a Day, from which this column draws. Jan Wolfe assisted in the preparation of this column.

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