January 2006

NEWS FROM ATTORNEYS GENERAL OFFICES

  1. Responding to concerns expressed by senior citizens and pharmacists in the state, early in January, Arkansas Attorney General Mike Beebe asked state health officials to intervene to make sure the state’s citizens received the drugs promised through the new federal Medicare program. At least twenty other states have also intervened to ensure that residents will be able to fill their prescriptions. Responding to the evident difficulties in initiating the new Medicare prescription drug plan, the Washington Post reported that federal officials are traveling across the country, talking to state officials and pledging to fix the start-up problems as quickly as possible while the New York Times reported that the Administration had ordered that a thirty-day supply of prescriptions be provided by insurers.

  2. The Los Angeles Times published an interesting article in its travel section concerning what happens when an American dies abroad. The article suggests that travelers exercise a durable power of attorney and notes that California Attorney General Bill Lockyear’s website contains a form for an advance health care directive.

  3. Florida Attorney General Charlie Crist recently sued Intrust Home Care, a Florida corporation, and its owner for selling fraudulent contracts for home health care services. Victims of the alleged fraud include residents of California, Florida, Illinois, and Virginia.

  4. Following the arrests of nineteen employees of two New York nursing homes, Attorney General Eliot Spitzer has filed a lawsuit against the corporation that controls one of the nursing homes. An investigation continues against the other. Evidence was gathered by placing hidden cameras in patients’ rooms with the permission of family members. General Spitzer’s Office has also issued a new, comprehensive report, titled “Making Choices,” which details staffing information of New York nursing homes. It includes a federal study concerning staffing levels and also measures levels against the criteria established by California, Florida, Illinois, Ohio, and Vermont. The Office has also updated its Prescription Drug Price website. The site now compares the cost of 150 commonly prescribed drugs in counties across the state.

  5. General Spitzer is also seeking to strengthen the definition of stealing from Medicaid to simply prosecution of fraud cases as part of the legislative agenda which includes a proposal that whistle-blowers who report Medicaid fraud be rewarded with a portion of the money recovered.

COURT DEVELOPMENTS

  1. The U.S. Supreme Court issued its opinion in Gonzales v. Oregon, No. 04-623 (Jan. 17, 2006). It held that the federal Controlled Substances Act does not authorize the Attorney General to prohibit physicians’ prescribing controlled substances for physician-assisted suicide when it is permitted by state law. In an article in the January 22d issue of the Washington Post, Marc Kaufman reported the views of various commentators as to whether the Court’s decision will affect prosecutions of doctors for illegally prescribing pain medication for their patients.

  2. Oral arguments were held in October in Abigail Alliance for Better Access to Developmental Drugs et al. v. Crawford, No. 04-5350 (D.C. Cir.). The lawsuit seeks to strike down FDA regulations that prohibit terminally ill patients with no approved treatment options from obtaining drugs that are going through clinical trials. Documents related to the case are available on the Washington Legal Foundation website.

  3. The Massachusetts Supreme Judicial Court has determined that life support may be withdrawn from Haile Poutre, an eleven-year-old girl who was badly beaten in September with a baseball bat. (Care and Protection of Sharlene, No. SJC-09629 (Mass. Jan. 17, 2006), 2006 Mass LEXIS 9.) Jason Strickland, the girl’s step-father had petitioned the court to overturn a lower court’s determination that social services, the guardian of the child, could withdraw life support. The state supreme court held that participation in the end-of –life decision should not be accorded Strickland who had not demonstrated that he had performed a parental role and who was allegedly complicit in the child’s current condition. Haile’s adoptive mother (and biological aunt) and grandmother were found dead several days after charges were filed against the mother and stepfather. Police consider those deaths to have been a murder-suicide. The Boston newspapers are now reporting that Haile is breathing on her own and is responding to some stimuli. Therefore, state social services has delayed removing the feeding tube.

LEGISLATIVE DEVELOPMENTS

  1. The Hutchison News reported that Kansas Rep. Bob Bethell (R-Hutchison) will be re-introducing a “Pain Patient’s Bill of Rights” to the Kansas Legislature. The proposed legislation is designed to help allay physicians’ fears about prescribing medications to help manage pain.

  2. According to the Washington Post, Maryland Governor Robert Ehrlich Jr. has proposed legislation that would make it easier for unmarried partners to make medical decisions for each other. Under the proposed legislation, a central registry of advanced directives would be created that could be accessed by hospitals and other medical providers.

  3. The Concord Monitor states that New Hampshire legislators are debating whether the state should retool its regulations for living wills and medical powers of attorney and add guidelines for do-not-resuscitate orders.

PAIN MANAGEMENT

  1. The Slidell Sentry-News reported that the federal government has filed a superceding indictment against a Slidell, Louisiana, pharmacy owner and three doctors for illegally dispensing schedule III and IV controlled substances and other connected offenses. According to prosecutors, the six businesses involved attracted residents from Alabama, Florida, and Texas.

  2. According to an Associated Press report, the first human studies on the efficacy of resinferatoxin (RTX) in pain control may begin next year at the National Institutes of Health. RTX has proved effective in controlling pain from bone cancer in dogs. A second study in dogs will begin this summer at the University of Pennsylvania. RTX is a derivative of a cactus-like plant from Morocco that is 1,000 times more potent than the chili pepper chemical, capsaicin.

  3. The January 5th issue of the New England Journal of Medicine includes an article by Timothy E. Quill, M.D., and Diane E. Meier, M.D., titled “The Big Chill: Inserting the DEA into End-of-Life Care.” The article is cited in a January 16 Times Argus article titled “Drug Policies are Making Final Passage a Painful One” and in a January 10 New York Times article by Jane E. Brody, titled “Let’s Get Serious About Relieving Chronic Pain.”

  4. Finding that pain pumps were nearly nonexistent in U.S. military hospitals in Iraq, an Army anesthesiologist, Lt. Col. Trip Buckenmaier, has been instrumental in the military’s switch from using morphine to fight pain to using a combination of nerve blockers, opiates, and pain pumps, particularly on evacuation flights to Germany.

  5. The Washington Legal Foundation website contains a “Conversation With” former U.S. Attorney General Dick Thornburg and former New York City Mayor and former United States Attorney Rudy Giuliani. The topic of their discussion was prescription drug abuse. Giuliani chairs the Rx Action Alliance, a group that promotes a balanced approach in addressing illegal abuse of controlled substances and consumers’ access to appropriate medication.

  6. Research and Markets, a world-wide market research firm, has recently released the second edition of Pain Management, which explores various issues in managing and classifying pain from a market perspective. Resources and references from the medical literature are included.

  7. In research conducted at the Veterans Affairs Medical Center Pain Clinic in Fayetteville, North Carolina, it was discovered that the use of nalbuphine was successful in the daily management of chronic pain in fourteen men and eleven women. The author of the study, James S. Howard III, M.D., found that nalbuphine was relatively safe, almost as effective as morphine, but demonstrated non-pseudoaddictive properties. The research was published in the January 2006 issue of the American Journal of Pain Management.

  8. In a lengthy article discussing pain treatment in Utah and across the country, Lois M. Collins and Elaine Jarvik, writing for the Deseret Morning News, noted that Utah was one of the first states to sign onto a model pain-treatment policy. A Department of Health task force is also looking at pain care policy and opiod use using, what Dr. Perry Fine, vice-president of medical affairs for the National Hospice and Palliative Care Organization, describes as a “calm, thoughtful approach.” The article also discusses the particular difficulty physicians have in regulating pain among those with dementia.

  9. Mary Poppins may have been right; a spoonful of sugar might help the medicine go down. Researchers at Children’s Mercy Hospital in Kansas City, Missouri, are researching the effect of sugar water on reducing pain in infants who are undergoing immunizations and other painful procedures.

OTHER DEVELOPMENTS

  1. The Pew Research Center released the result of a survey it conducted regarding public attitudes towards end-of-life issues. It found that public attitudes had not changed from 1990 and that the majority of people believe that it is up to individuals, not the government or medical professionals, to ultimately determine their end-of-life medical decisions. One change, however, is that the number of individuals saying that they have a living will has more than doubled to 29% of the surveyed population. The survey results are available on the Pew Research Center website.

  2. Leon R. Kass, M.D. and Eric Cohen’s article from Commentary Magazine is available on the American Enterprise Institute website. Titled “Cast Me Not Off in Old Age,” it muses on many end-of-life issues and society’s response to these issues. On Crosswalk.com, Albert Mohler Jr., the president of Southern Baptist Theological Seminary, offered a Christian perspective on Kass and Cohen’s article.

  3. The Rand Corporation has announced a new program with the John A. Hartford Foundation that provides support and technical assistance to universities to establish interdisciplinary centers in geriatric health care research.

  4. The current issue of the Journal of American Geriatrics contains an article that demonstrates the divergent views in how racial and ethnic groups view health care, spirituality, family, and dying. Titled “Racial/Ethnic Preferences, Sex Preferences, and Perceived Discrimination Related to End-of-Life Care,” the article reports the result of a study using 73 focus groups, including Arab Muslims, Arab Christians, Hispanics, blacks, and whites regarding their end-of-life preferences.

  5. In the confirmation hearings for Supreme Court nominee Samuel Alito, several senators questioned Alito about his views concerning end of life issues. Sen. Diane Feinstein (D-Cal) and Sen. Patrick Leahy (D-Vt) asked questions concerning Alito’s thoughts on the Court’s prior end of life cases, Washington v. Glucksberg, 521 U.S. 702 (1997) and Cruzan v. Director, 497 U.S. 261 (1990).

  6. In a “Question of Ethics” by Carolyn Holland, the author explores the need for everyone who is eighteen years and older to have an advanced directive and a health proxy as well as the evolution in the twentieth century from a paternalistic approach to medical care to one of patient autonomy.

  7. Two articles written from a faith perspective appeared this month. The first, from the January 9th issue of the St Petersburg Times, titled “Jewish Scholars split on End-of-Life Issues” comments on the medical situation facing Ariel Sharon and his family. The Baptist Press carried an article, titled “End-of-Life Decisions: The Key is Communication” in its January 13 on-line edition.

  8. The January 2006 issue of the American Journal of Critical Care contains an article detailing the results of a study conducted by the American Association of Critical-Care Nurses. The study found that only one in four U.S. hospitals has patient care policies addressing end-of-life or palliative care.

  9. The Illinois State Medical Society has updated and expanded its booklet that assists with end-of-life decisions and provides form under Illinois law. Titled “A Personal Decision,” it is available for free from the society.

  10. John Tierney writes in the January 24th issue of the New York Times about the appeal of physician Bernard Rottschaefer’s conviction for illegally prescribing OxyContin and Xanax. Rottschaefer’s attorneys are producing evidence that the star witness in the case committed perjury when she testified against her physician.

  11. Perhaps dogs really are a man’s best friend. In research that will be published in the March 2006 issue of Anthrozoös, William A. Banks, M.D., professor of gerontology at St. Louis University, found that nursing home residents who spent thirty minutes one-on-one with a dog felt less lonely than they did when the visit included other residents and a dog. However, the research also demonstrated that visits with a dog alleviated loneliness in both groups.

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