December 2005

NEWS FROM ATTORNEYS GENERAL OFFICES

  1. Twenty-six Attorneys General signed a letter expressing support for legislation creating a National Pain Care Policy, such as H.R. 1120, circulated by Oklahoma Attorney General Drew Edmondson. The states and jurisdictions represented were Alaska, American Samoa, Arizona, Arkansas, California, Connecticut, Delaware, District of Columbia, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont, and Wyoming.

  2. Illinois Attorney General Lisa Madigan’s Office has discovered that Illinois nursing homes are failing to abide by the state law that requires notification to residents and visitors of a nursing home that individuals convicted of sex offenses are living there. The Office is also expressing concern about a proposed change to the Vulnerable Adults Protection Act in order to make the law less costly to nursing homes. Under the proposed changes, current nursing home residents would be exempt from criminal background checks unless they volunteer information about their past crimes and there would be no requirement that registered sex offenders be banned from sharing bedrooms with other nursing home residents.

  3. According to a December 23 article in the Globeandmail.com, Louisiana Attorney General Charles Foti is investigating whether some of the patients who perished at Memorial Medical Center during Hurricane Katrina were euthanized.

  4. In December, Attorney General Drew Edmondson spoke at a forum at Oklahoma University on pain management. General Edmondson’s remarks focused on the deleterious effect some law enforcement efforts have had on physicians’ trying to manage their patients’ chronic pain. The forum also featured Dennis Kinch, a spokesman for the National Pain Foundation and a chronic pain sufferer, who is on a walking trip along U.S. Highway 66 to raise awareness about chronic pain and options available. General Edmondson will also be a feature panelist for the April 5th teleconference, sponsored by the Hospice Foundation of America , focusing on Pain Management at the End of Life: Bridging the Gap Between Knowledge and Practice. The event is to be broadcast live via satellite. The teleconference will examine the gap between knowledge and application of effective pain control in the person with a terminal condition. Registration is now open on the Hospice Foundation’s website and organizations are encouraged to host a downlink site for the teleconference.

COURT DEVELOPMENTS

  1. The convictions of three South Carolina doctors for conspiracy to distribute controlled substances, conspiracy to commit money laundering, and multiple counts of distributing controlled substances were upheld by the U.S. Court of Appeals for the Fourth Circuit early this month. In United States v. Alerre, Bordeaux, and Jackson, Nos. 03-4207 et al., 1005 U.S. app. LEXIS 26161 (Dec. 1, 2005), the court cited both United States v. Moore, 423 U.S. 122, 124) (1975) (registered physicians can be prosecuted when their activities fall outside the “usual course of professional practice”) and United States v. Tran Trong Cuong, 18 F.3d 1132, 1137 (4th Cir. 1994) (“a licensed physician who prescribes controlled substances outside the bounds of his professional medical practice is subject to prosecution and is no different than a large-scale pusher”) in upholding the defendant doctors’ convictions.

  2. Arguments were held in December before the Massachusetts Supreme Judicial Court regarding whether life support should be removed from 11-year old Haleigh Poutre. According to the police, Haleigh’s injuries were inflicted by her adoptive mother and stepfather. Haleigh was taken to the hospital in September; her adoptive mother (also her biological aunt) and great-grandmother were later killed in what police term either a murder-suicide or double-suicide. A juvenile court judge ordered that Haleigh’s ventilator and feeding tube be disconnected, but that order has been stayed while Jason Strickland, Haleigh’s step-father, appealed. He argued that Haleigh is a Roman Catholic and removal of life support is against the Roman Catholic faith. Haleigh’s biological mother, who gave up parental rights after charges of abuse were made, believes that life support should be removed. If Haleigh dies, the charges against Strickland could be upgraded from assault and battery to charges connected with Haleigh’s death.

OTHER DEVELOPMENTS

  1. The current issue of the Journal of Palliative Care includes an article by Miles Edwards, M.D., a clinical consultant for the Center of ethics in Health Care at Oregon Health & Science University, citing the results of a study which contradicts the current thinking that the use of morphine in the final stage of life for patients with breathing difficulties hastens their death. The major finding was that patients lived longer when morphine and sedation were provided. An appropriate level of morphine suppresses the anxiety of persons with breathing difficulties, allowing patients to survive on less oxygen, live longer, and live out their final time in a more peaceful manner.

  2. At a December 2d symposium in Billings Montana, John Oakley, M.D., medical director of the Northern Rockies Regional Pain Center, estimated that 80 percent of physicians do not prescribe opioids for fear of being investigated by the Drug Enforcement Administration. The symposium, dealing with chronic pain management, was held at St. Vincent Healthcare for medical providers, law enforcement personnel, educators, and others. March Gonzalez, M.D., the law enforcement liaison and educator for the drug company Purdue Pharma emphasized the need to teach medical professionals about which drugs are the most abused and which patients are most likely to divert them. Dr. Oakley noted that his practice requires patients to sign both a contract and a consent for frequent urine tests.

  3. Scott Gottlieb, M.D., Deputy Commissioner for Medical and Scientific Affairs at the U.S. Food and Drug Administration, spoke before the American Pain Foundation on December 8, regarding FDA’s opposition to DEA’s involvement in approving new pain medications. He also emphasized that FDA has discussed ways to collaborate with DEA. This would include encouraging drug developers to engage DEA early in the approval process to ensure that it has the information it needs when new products enter the market. He stated: “We need to find creative and effective ways to deal with a growing problem of illegal diversion and abuse by a handful of criminals while making sure that patients who need these medicines have timely access to safe and effective new palliative care and pain drugs.”

  4. The Opioid Management Society, in association with the Journal of Opioid Management, has announced a two-day program that is designed to inform and certify medical professionals in the uses, abuses, and legal ramifications of opioids. The program will be held on April 22d and 23d in Boston, Massachusetts, at the Conference Center at Harvard Medical School.

  5. The December issue of the Journal of Palliative Medicine contains the results of a survey that confirms that palliative care programs continue to be a rapidly growing trend in U.S. hospitals. The number of such programs increased from fifteen percent of hospitals in 2000 to twenty-five percent in 2003.

  6. The December 13 issue of the Proceedings of the National Academy of Sciences details the result of research conducted by Stanford University School of Medicine and others which found that chronic pain sufferers may be able to reduce pain levels by studying their own live brain images and learning to control activity in one of the brain’s pain centers. A longer-term study is now underway to test the potential of this technique for therapy and treatment of chronic pain.

  7. The December 5 issue of the Boston Globe contains an article which poses the question of whether a state’s prescription monitoring program should voluntarily disclose to law enforcement personnel information when a doctor is prescribing extremely high rates of opioids. The question was raised in relation to the case of Dr. Michael Brown, arrested by law enforcement personnel and charged with illegal possession and possession with intent to sell. The monitoring program revealed that Dr. Brown was the largest single prescriber of OxyContin in Massachusetts, but law enforcement personnel were not alerted by the monitoring program. Instead, they acted after a group of mothers picketed Dr. Brown’s office, accusing the doctor of addicting young people to OxyContin.

  8. The House Subcommittee on Health held a hearing on December 8 examining federal research efforts for pulmonary hypertension and chronic pain. Representatives heard testimony by various medical professionals as well as chronic pain sufferers such as Cpt. John Pruden, severely injured during service in Iraq. An archive of the hearing webcast is available on the subcommittee’s website.

  9. Senators Bill Nelson, Richard Lugar, Evan Bayh, Christopher Dodd, and Ron Wyden sent a letter to Senator Charles E. Grassley, Chairman of the Senate Finance Committee and Senator Max S. Baucus, Ranking Member, requesting that the committee hold a hearing on S. 347, a bipartisan bill that would give Medicare beneficiaries the opportunity to discuss end of life issues with their doctors on a no-fee basis. The bill would also provide funds for the Department of Health and Human Services to conduct a public education campaign and establish an information clearinghouse.

  10. The Iowa Office of Drug Control Policy has released its 2006 strategy under which there will be a push for the legislature to approve an electronic system that tracks sales of prescription drugs and over-the-counter drugs used as methamphetamine ingredients. Information from the system would be used to refer patients to drug treatment or to a pain-management specialist.

  11. Martin Haines, a retired New Jersey Superior Court judge and former State Bar Association president, wrote in the December 15 issue of the Asbury Press that the correct method to calculate DEA enforcement actions against physicians is to adopt the Cato Institute’s approach. By dividing the number of pain specialists by the total number of investigations by the DEA, the Cato Institute determined that, in 2001, seventeen percent of pain specialists were investigated. In his article, Haines cites the letter by thirty-two attorneys general to DEA concerning its withdrawal of its plan balancing pain treatment and Controlled Substance Act enforcement policies.

  12. The Australian government has issued a new information packet titled Journeys: Palliative Care for Children and Teenagers. The packet contains information on caring for terminally ill children, diagnosis and bereavement.

  13. The Life End’s Institute will close at the end of December. Founded in 1996, the institute was on the leading edge of a national effort to address end-of-life care. The Duke Institute on Care at the End of Life will take on research and assessment tools, databases, and data compiled over the years by Life’s End. St. Patrick Hospital will take on administration of the Choices Bank which contains about 5,000 end-of-life directives.

  14. Senator Chip Rogers has filed a bill for the 2006 Georgia legislative session that would create a legal presumption that people who are incapable of making their own decisions should be kept alive with food and water — a matter on which state law is currently silent. A family member or guardian would need a written directive from a loved one or be able to present "clear and convincing evidence" that the family member would prefer to die rather than be kept alive with a feeding tube.

  15. The 2005 White House Conference on Aging closed with delegates voting on fifty resolutions. One of the top ten resolutions was to promote innovative models of non-institutional long-term care.

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