Physician prescribes Oxycontin, ends practice without referral – $225,000 Settlement

The decedent had been under the care of Dr. William Hurwitz for pain management of a back condition for a number of years prior to her death in November 2002. During his care of the decedent, the defendant prescribed her significant amounts of Oxycotin.
In 2007, the defendant was convicted in the U.S. District Court of Alexandria of 16 counts of drug trafficking in conjunction with his pain management practice. He had previously lost his license to practice medicine in Virginia.

In the spring of 2002, the decedent began complaining of abdominal pain (a new symptom) and prior to her death suffered significant weight loss. During this time, Dr. Hurwitz was her only treating physician.

At deposition, Dr. Hurwitz agreed that the standard of care required involvement of a primary care physician with any patients receiving pain management care. He acknowledged that he continued to prescribe Oxycotin to the decedent despite his knowledge that she was not under the care of a primary care physician.

In late August 2002, Dr. Hurwitz advised the decedent that he was closing his practice, and he told her to either taper her use of narcotic pain relievers, or seek alternate medical care. The plaintiff’s theory was that if Dr. Hurwitz did not insure a referral to a primary care physician, he was acting as her de facto primary care physician. Therefore, he either had a duty to diagnose the source of her new pain, or refer her to a specialist for further diagnosis treatment.

The symptoms described by decedent were consistent with chronic and acute pancreatitis, the ultimate cause of her death. However, the decedent was hospitalized twice during the months leading up to her death for unrelated conditions.

During both hospital stays, her blood work showed normal amylase levels, which was inconsistent with a diagnosis of pancreatitis.

Thus, proximate cause in this case was problematic. The defense argued that the defendant either met his standard of care by suggesting the decedent see a primary care physician, or that the condition of pancreatitis was not being masked by the pain pills and would not have been diagnosed had the decedent been seen by a specialist.

Because of the defendant’s incarceration from 2003 to 2008, trial was scheduled to occur over six years after the decedent passed away. The case settled six weeks before trial.

The lowest demand before mediation was $500,000. The highest offer was zero.

[09-T-039]

Type of Action: Wrongful death, failure to refer and/or failure to diagnose
Type of Injuries: Death
Name of Case: Estate of Mary Nye v. Dr. William Eliot Hurwitz, et al.
Court: Prince William County Circuit Court
Tried Before: Mediation
Name of Mediator: Jay T. Swett
Verdict or Settlement: Settlement
Amount: $225,000
Date: Feb. 4, 2009
Attorneys for Plaintiff: Paul A. Morrison and Christopher T. Whelan, Warrenton