December 2007

News from Attorneys General Offices

  1. Florida Attorney General Bill McCollum recently announced the arrest of two Florida residents for abuse or neglect of the elderly. A Pensacola caregiver was arrested and charged with abusing a disabled woman by striking her while taking the woman on an outing. A Broward County woman was arrested and charged with exploiting an elderly resident of an assisted living facility by stealing money from her handbag. General McCollum also announced that, at the request of Minnesota Attorney General Lori Swanson, his Medicaid Fraud Control Unit arrested a Boynton Beach man on charges stemming from a Minnesota elder exploitation case. George Spires, Jr., allegedly took control of his father’s assets and diverted more than $144,000 from his father. His father then sought Medicaid assistance from the State of Minnesota.
  2. Hawaii Attorney General Mark Bennett announced the conviction of an unlicensed care home operator with assault in the second degree and operating a care home without a license.
  3. Kentucky Attorney General Greg Stumbo announced that a former Kentucky dentist was arrested for Medicaid fraud and drug trafficking. The indictment alleges that the dentist unlawfully provided schedule III drug prescriptions to patients when there was no medical need or justification for the prescriptions.
  4. Maryland Attorney General Douglas F. Gansler announced that a Columbia, Maryland, man, Haendel Paul, was found guilty of three counts of neglect of a vulnerable adult. While employed as the overnight residential counselor at a Baltimore County group home, Paul left the facility and visited a friend. He was sentenced to three years’ incarceration, which was suspended, three years’ supervised probation, 80 hours community service, and was prohibited from working in the health care industry for three years.
  5. New Hampshire Attorney General Kelly A. Ayotte reminded New Hampshire state residents that holiday visits to aging friends and loved ones present an opportunity to asses their well-being. The press release noted signs that visitors should look for that might indicate self-neglect, exploitation, and/or physical abuse or neglect. The press release included a toll-free number that residents should call if they suspect that any of these problems exist.
  6. Pennsylvania Attorney General Tom Corbett announced the arrest of a former Lancaster General Hospital nurse for allegedly taking OxyContin, Vicodin, and Percocet tablets from the hospital for her own use.
  7. Vermont Attorney General William H. Sorrell announced that a licensed practice nurse, Elizabeth Eikenberry, pled guilty to diluting and diverting narcotics for her personal use. She admitted to stealing liquid Oxycodone from a patient and then diluting it with cranberry juice to administer to her patient. She was sentenced to 18 to 36 months in jail, all but six months suspended.
  8. Wisconsin Attorney General J.B. Van Hollen announced that a former Marquette County Deputy Sheriff has been charged with multiple felony counts based on his alleged theft of drugs maintained as evidence. The complaint alleges that Daniel Card took Oxycodone and a small amount of crack cocaine that was being held in the evidence storage room.

Judicial Developments

  1. The U.S. Circuit Court of Appeals for the Eighth Circuit has upheld the sentence of Dr. Thomas A. Hanny for conspiring to distribute controlled substances outside the course of normal medical practice. In United States v. Thomas A. Hanny, No. 07-1010 (Dec. 12, 2007), the court held that the record evidence supported the district court’s application of U.S.S.G. § 2D1.1(b)(5), which requires a court to apply a two-level enhancement if the defendant committed a property offense through “mass-marketing.” In this case, Hanny was involved in prescribing for a company selling controlled substances over the Internet. The court held that operation of an illegal Internet pharmacy through an interactive website was sufficient conduct to warrant application of the guideline against co-conspirator Hanny.
  2. A federal district judge has concluded, in IMS Health Corporation v. Rowe, No. CV-07-127-B-W (D. Me. Dec. 21, 2007), that Maine’s law making doctors’ prescription-writing habits confidential violates the First Amendment.
  3. The Massachusetts Supreme Judicial Court ruled in Coombes v. Florio, 450 Mass. 182, that a physicians’ duty of care extends to all those foreseeably at risk for the failure to warn about the effects of treatment. In this case, the doctor had prescribed Oxycodone, Zaroxolyn, Prednisone, Flomax, Potassium, Paxil, Oxazepam, and Furosemide for his patient. The patient subsequently had an automobile accident that killed Coombes. Dr. Florio evidently did not warn his patient that the drugs could cause drowsiness or caution him about driving.
  4. The Georgia State Court of Appeals recently upheld a lower court decision that the choice to end a loved one’s life should be left to family members, not hospitals. In Dekalb Medical Center v. Hawkins, No. A07A1405 (Ga. Ct. App. Nov. 29, 2007), the court upheld the trial court’s denial of the hospital’s motion to dismiss the case. The decision involved the case of a teenage mother who was kept on life support for four months after being assaulted and suffering a brain injury. Doctors had urged her mother to remove her from life support and abort the pregnancy. A few days after giving birth, the doctors removed her from life support without the consent of the family. The lawsuit was brought on behalf of her son. The court stated that, under Georgia law, “the decision of whether to continue or terminate life support for an incompetent adult patient who did not have a living will and who has no reasonable possibility of regaining cognitive functions belongs exclusively to the patient’s family or legal guardian, not to the hospital, the patient’s physicians, or the state.” In contrast, an article in the Atlanta Journal, in reporting on the case of Donald Fennell’s family’s attempt to keep him on life support and their dispute with Emory Eastside Medical Center, quotes the hospital as citing a Georgia law that says a patient can be pronounced dead once a physician determines there has been “irreversible cessation of all functions of the entire brain, including the brain stem,” which would then allow doctors to make the decision to disconnect life support without needing the consent of the family.
  5. The parents of a 16-year old patient who is in a persistent vegetative state are disagreeing about whether life support should be withdrawn. Javonna Peters stopped breathing during surgery to drain cerebral fluid. Her parents, who were never married, are estranged. Her mother wants life support to be ended; her father has not given permission. A court hearing in the Bronx Supreme Court will be held on January 7.
  6. The family of a Winnipeg, Canada, Orthodox Jewish man has gone to court to require Grace Hospital to continue him on life support, including a ventilator and tube feeding, in accordance with their religious beliefs. The hospital has taken the position that it should disconnect life support because the patient has minimal brain function and no hope of recovery. A Winnipeg judge ordered a temporary injunction against the hospital.

Legislative Developments

  1. The Broward, Florida, legislative delegation will propose a bill in to begin a pilot prescription drug monitoring program in the county. Florida legislators have consistently voted down similar statewide proposals, citing concern about patient privacy. However, according to the Alliance for Model State Drug Laws, there has been no breach of the system in the other states that have such programs.

Pain Management

  1. Aaron M. Gilson and David E. Joranson of the Pain & Policy Studies Group published a commentary querying whether the DEA’s new “prescription series” regulation represented a balanced position regarding pain management. The paper answered the question in the affirmative, finding balance in the regulation and in DEA’s comments concerning the regulation.
  2. The U.S. Food and Drug Administration issued a second warning in two years to physicians concerning the painkiller fentanyl. The FDA cautioned physicians that any patient new to opioids should not be given fentanyl patches. The agency is investigating reports of more deaths that have evidently been caused by doctors prescribing fentanyl for the wrong patients. An article in The Patriot Ledger noted that a survey of death certificates in 28 cities and towns in Massachusetts found that 16 people had overdosed on fentanyl in one year, from August 2006 to August 2007. This represents a large increase from the 13 that had died from fentanyl overdose in the previous two and one-half years.
  3. CA: A Cancer Journal for Clinicians published an article that presented the recent results from the Pain & Policy Studies Group’s national policy evaluation project. The article describes how practitioners can use the findings in the report to inform and guide state-level efforts to improve policies affecting appropriate pain management and patient care.
  4. A recent issue of the on-line Pain Treatment Topics e-Briefing contain several articles of interest. The lead article, “Opioid Contracts: Good, Bad, or Useless?” surveys recent studies concerning the effectiveness of such contracts. The article notes that these contracts are currently written at advanced literacy skills level and, at the very least, should be re-written so that patients can more easily read and understand them. Another article, “Evolving Risks of Opioids,” summarizes an earlier article written by Dr. James Toombs on applying the Model Policy for the Use of Controlled Substances for the Treatment of Pain. Other comments include those on an article by Dr. Penelope Ziegler on “Conundrums in Primary Care,” which suggested how the management of chronic care patients in the primary care setting may be improved, and one by Dr. Lynn Webster on “Maximizing Methadone Safety.”
  5. An effort is underway among a bi-partisan group of senators to urge DEA to legalize e-prescribing of controlled substances. In a Senate Judiciary Committee hearing, Joseph Rannazzisi, head of DEA’s Office of Diversion Control, told the senators that, without appropriate controls, electronic prescriptions for controlled substances would exacerbate a growing epidemic of prescription drug abuse.
  6. The Clinical Journal of Pain published an article on physician attitude towards opioids for chronic non-cancer pain. The study, conducted at Mount Sinai, found that internists were more likely to be concerned about illegal diversion, about causing addiction, and about their inability to prescribe the correct dose than were geriatricians.
  7. A British doctor, John Chambers, is leading a drug trial of 280 patients testing clopidogrel, a clot-busting drug, on patients who suffer from migraines.
  8. According to an article in the Journal of Pain and Symptom Management, inadequate analgesic prescriptions and poor patient adherence contribute to ineffective cancer pain management. Another article discussed the important aspects of end-of-life care among veterans.
  9. Researchers writing in the October 2007 issue of Practical Pain Management report that dextrose injections improved pain symptoms and quality of life in chronic neck pain sufferers. In the same issue, there is a guide that doctors can give their chronic pain patients to help them become aware of various potential problems and mistakes so that they can become an active participant in the pain management protocol.
  10. In a study published on-line on December 11 in Annals of Oncology, experts in palliative care report that the belief that opioids hasten death is widely held among patients and that this belief significantly impacts pain management.
  11. The Baltimore Sun published a series of articles regarding increasing concern over the prescribing and use of buprenorphine. Two U.S. Senators, Sen. John Kerry (D-Mass) and Sen. Bernard Sanders (I-Vt), are troubled with the growing problem regarding diversion of buprenorphine in the Northeast. In Maryland, two legislators have stated that they intend to question health officials about abuse of the drug and state spending on it when the Maryland General Assembly convenes in January.

Prescription Drug Diversion

  1. Houston, Texas, Channel 2 took hidden cameras inside various Houston-area pain clinics. The report noted that all of the clinics the reporters visited easily gave prescriptions for the same cocktail of hydrocodone, Xanax, and Soma.
  2. Federal charges have been filed against Kansas osteopath Dr. Stephen Schneider, alleging that 56 of the doctor’s patients died from accidental overdoses but that the doctor never changed his prescribing practices. A 65-page indictment describes Schneider Medical Clinic, 7030 S. Broadway in Haysville, as a “pill mill” open 7 days a week. Schneider and his assistants allegedly unlawfully wrote prescriptions for Fentanyl, Methadone, Morphine, Oxycodone and other narcotics. Dr. Schneider’s wife has also been charged.
  3. A former Murray, Utah, doctor has been indicted, along with two of his office assistants, by federal officials, on eighteen counts, including dispensing a controlled substance without a legitimate medical purpose and outside the bounds of medical practice. According to officials, the deaths of five individuals are linked to the medications that Dr. Warren Stack wrote.
  4. Although fewer young people are using marijuana and other illegal drugs, the percentage of teenagers abusing prescription painkillers remains very high. According to a study by the University of Michigan Institute for Social Research, more than 15% of high school seniors reported misusing a prescription drug within the last year.
  5. The website of several Alabama newspapers published an article that noted the success of the Alabama prescription drug monitoring program. According to the article, it has been accessed more than 30,000 times since it became functional last year. The Alabama Board of Medical Examiners has used the database for ongoing investigations. More then 940 Alabama doctors have signed up to use the system as well as 266 pharmacists and 130 representatives of law enforcement agencies. Under Alabama law, law enforcement agencies may only get reports on people they suspect of selling prescription drugs and they must certify to the Department of Public Health that the information is connected to a specific ongoing investigation.
  6. The journal Addiction published a research report that looked at whether early onset of non-medical use of prescription drugs predicted subsequent prescription drug abuse and dependence. The research showed that a higher percentage of individuals who began prescription drug abuse at or before 13 years of age developed prescription drug abuse and dependence versus those individuals who began using at or after 21 years of age.
  7. A Wyoming newspaper carried an article noting that prescription drugs have supplanted methamphetamine as the drug of choice in the state. Some law enforcement officials are advocating that the state’s drug monitoring program be upgraded so that it is a real-time database. Currently the database is only updated once a month. At a meeting between Cody high school students and law enforcement officials, there was also a consensus that the state needs a “doctor shopping” law that might detour people from getting prescriptions from several doctors.
  8. The National Drug Intelligence Center released a report on methadone diversion. Key findings of the report include the fact that methadone thefts have increased the amount of methadone available for abuse, methadone poisoning deaths rose at a higher level than such deaths involving any other prescription opioid from 1999 through 2004, and diversion from pain management facilities, hospitals, pharmacies, general practitioners, family, friends and, to a lesser extent, narcotics treatment programs, increased availability.
  9. A Virginia Beach television station investigated the ease of obtaining controlled substances over the Internet. It asked a 16-year old viewer, with his mother’s permission, to try ordering drugs online from medhaven.net. The teen-ager was able to place an order for Soma, a muscle relaxer. The server which houses the site is located in Singapore. The doctor, a pediatrician, named on the prescription bottle works out of New York and the pharmacy bottling and shipping the drug was located in Lyons, Kansas.
  10. Vermont State Police have acknowledged that three detectives who asked pharmacies for lists of customers who bought certain prescription drugs overstepped their boundaries and violated department policies.
  11. A Canadian doctor who has been accused of illegally prescribing controlled substances over the Internet has agreed to surrender his medical license in Indiana. Dr. Mohamed Mekawy did not have a DEA or state Controlled Substances Registration to legally prescribe drugs anywhere.

Other News of Interest

  1. The December 5 issue of the Journal of the American Medical Association (JAMA) contained an article discussing end-of-life care of treating a patient with dementia who has eating problems.
  2. The November 29 issue of the New England Journal of Medicine contains an article discussing late-life depression and how it may best be treated.
  3. The December 20 issue of the Journal of Clinical Oncology included an article regarding the results of a study focusing on patients’ spiritual needs. Patients who reported that their spiritual needs were not being met reported lower satisfaction with care and gave a lower rating to the quality of care they received.
  4. The journal QJM has an article about communication with hospitalized patients who are likely to die. The article outlines a protocol in communication with patients and family members where there is a likelihood that life-prolonging measures may fail.
  5. The Worcester Telegram & Gazette featured an article regarding the new approach a nursing home is taking towards the death of residents. Instead of the secrecy that used to prevail where other residents were “protected” from the death of an individual including staff members often denying that a death occurred, the nursing home has now formed a “Peace Team” that is activated when a resident’s death seems imminent. Formed by nurses, recreation staff, a family member, and the food service director, the team provides a foldaway bed for family members, a basket with CDs, a journal, and books about the dying process, and takes other measures to assist both patients and their loved ones.
  6. On November 7, Dr. Alan Shewmon of the UCLA Medical Center presented to the President’s Council on Bioethics the results of examinations on individuals medically diagnosed as brain dead. His presentation challenged the concept that brain death should be used as a criterion for death of the organism as a whole.
  7. A USA Today analysis shows that more nursing homes are being cited for serious violations as state inspectors face increasing pressure to crack down on violations. From 2000 through 2006, the number of citations for putting patients in “immediate jeopardy,” the most serious reprimand inspectors can issue, increased 22%.
  8. A new study published in the Journal of Hospital Medicine reports that the methods to identify a patient with a Do Not Resuscitate order are incredibly various across hospitals. The article notes that a national effort to standardize color-coded wristbands would remove the potential for error that these different standards pose.
  9. The Houston Chronicle reported another case of a school board facing end-of-life issues regarding “Do Not Resuscitate” orders. In this case, the newspaper wrote about 8-year old Katie Jones who attends Lake County, Illinois, schools. After a two-year discussion, officials agreed to honor such directives. The article points out, however, that Chicago public schools ignore such orders and do everything possible to save a child’s life.
  10. The University of Illinois at Chicago College of Nursing has received a federal grant to create a center to study people as they transition to the end of life. The new center will conduct research to foster patient-centered, family-focused, respectful death and planning for end-of-life care that is consistent with the patients’ and families’ values and priorities.
  11. Health officials in Massachusetts are exploring the use of the POLST (Physician Orders for Life-Sustaining Treatment), a document that asks a patient’s preferences about life-sustaining interventions, including CPR.
  12. More psychiatric patients are exploring documenting their wishes regarding medication preferences by creating a document detailing the signs of deterioration that others should watch for. A Psychiatric Advance Direction, or PAD, allows a patient to authorize family members or doctors to keep them hospitalized over the objection of the patient, specify treatment preferences, and designate a decisionmaker or make other advance decisions about psychiatric care. Illinois and twenty-four other states currently have laws authorizing such directives.
  13. U.S. News and World Report’s December 2 edition carried an article concerning the need for effective communication with doctors and respect for the role of parents when dealing with end of life care for children.

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