March 2006

News from Attorneys General Offices

  1. Maryland Attorney General J. Joseph Curran Jr. recently announced the availability of two documents, written in collaboration with the American Bar Association, to help family members and friends making medical decisions for someone else. “Making Medical Decisions for Someone Else: A Guide for Marylanders” is a short pamphlet while the web version, available in PDF format, is a more detailed document which offers a step-by-step explanation for consumers who must make these difficult decisions.

  2. Michigan Attorney General Mike Cox announced that he filed suit against Metron Integrated Health Systems and three of its nursing facilities. Eight employees of Metron were recently charged with a variety of criminal offenses stemming from the death of an oxygen-dependent resident in January 2005. According to the complaint, the facilities have been operated in a manner that could endanger their residents.

  3. Joy McGrath, wife of Montana Attorney General Mike McGrath, became the first person to sign up for Montana’s online database of end-of-life declarations, according to an article in the Billings Gazette. The registry, set up by a 2005 state statute, will allow doctors anywhere in the world to access information on the wishes of Montana residents regarding end-of-life decisions.

  4. Pennsylvania Attorney General Tom Corbett recently announced the arrest of seven men accused of running a prescription forgery ring in four counties in Pennsylvania. The prescriptions for Percocet, OxyContin, and Methadone, used the names of legitimate doctors along with the doctors’ DEA prescription numbers.

  5. Wisconsin Attorney General Peg Lautenschlager, along with the director of the Coalition of Wisconsin Aging Groups’ Elder Law Center, Helen Marks Dicks, recently announced the creation of a joint effort to combat Medicare Part D scams and coverage problems.

Court Decisions

  1. The New York Court of Appeals recently decided that, under the Health Care Decisions Act for Mentally Retarded Persons, guardians may legally decide to withdraw life-sustaining medical treatment from their wards. The case involved the decision by a guardian to remove a feeding tube and a respirator from his brother, a Downs Syndrome patient, whom doctors had diagnosed as being in a persistent vegetative state. In re M.B., No. 47 (N.Y. Mar. 23, 2006).

  2. A recent British decision held that there was no legal distinction between withholding or withdrawing life support and that the best interests test would apply equally to both situations. In this case, the physician of a child of 18 months, suffering from the most severe form of spinal muscular atrophy, wished to withdraw ventilation. The parents opposed the petition. The court held that, balancing the evidence, ventilation should not currently be withdrawn but that doctors could lawfully withhold or not administer four other procedures which, if required, would mean that MB was dying: cardio pulmonary resuscitation; ECG monitoring; administration of intravenous antibiotics; and blood sampling. NHS Trust Claimant v. MB, No. EWHC 507 (Queen’s Family Division Mar. 15, 2006).


  1. An article in the March 27 issue of the St. Petersburg Times noted that Terry Schiavo’s death a year ago prompted over twenty states to consider legislation dealing with removing live support. However, only Louisiana has passed a law changing the guidelines. The article states that Alabama, Kansas, New Jersey, and Minnesota are still considering such legislation. The Pittsburgh, Pennsylvania, Post-Gazette carried an article on March 28 that noted that Pennsylvania has a bill pending that could establish priorities as to who is to make a health decision for an incapacitated person if no one has been named. It also reported that the Governor has a task force that is completing a report that will provide recommendations on how the state can expand use of advance directives, hospices, and palliative care. The website of Americans for Better Care of the Dying states that Alabama, Georgia, Hawaii, Iowa, Kansas, Kentucky, Minnesota, New Jersey, North Carolina, and South Carolina are all considering laws that could impose a presumption that patients want tube feeding to keep them alive.

  2. Washington Governor Chris Gregoire signed HB 2342 into law. It directs the Washington Department of Health to set up a secure, web-based registry of living wills.

Pain Management

  1. A series of articles in the January 2006 issue of Pain Medicine discuss the current situation existing regarding the U.S. Drug Enforcement Agency (DEA) and pain medicine. Many of the articles focus on DEA’s November 16, 2004, Interim Policy Statement (IPS) regarding Do Not Fill (DNF) prescriptions. These prescriptions are written and signed by the physician on one date with instructions to a pharmacist not to fill until a later, specified date. Earlier, DEA had affirmed that practice. However, in the IPS, the agency stated: “. . . writing multiple prescriptions on the same day with instructions to fill on different dates is a recurring tactic among physicians who seek to avoid detection when dispensing controlled substances for unlawful (nonmedical) purposes.” One commentary, by Dr. Howard Heit, lamented that, despite a meeting called by DEA with pain practitioners and others in the pain community in August 2005 where DEA officials heard concerns about the IPS, a website posting after the meeting made no change to the November IPS position. Another article by Ben Rich, J.D., references the letters written to DEA by attorneys general in January and March 2005. An especially interesting article by a former Assistant U.S. Attorney, Jennifer Bolen, adds an interesting legal perspective to the issue.

  2. In the same issue of Pain Medicine, an editorial by Dr. Debra Weiner calls for a new, multi-disciplinary focus on addressing pain among the elderly. She notes that, with over 4,000 articles published annually related to pain, less than one percent focuses on pain and aging.

  3. The American Pain Society will hold its annual meeting in San Antonio on May 3 through 6. Among the sessions will be one on the clinical meaning and legal/ethical implications of pain relief and another on prescription opioid abuse.

  4. The February issue of the Journal of the American Geriatric Society included an article that revealed that many nursing home residents have poorly controlled pain because of inadequate medication treatment. Researchers designed and tested a Nursing Home Pain Medication Appropriateness Scale (PMAS) and found that less than half of residents with predictably recurrent pain were being prescribed scheduled pain medication.

  5. Steven Mitchell, UPI Senior Medical Correspondent, wrote an analysis piece, titled “Does Fed Policy Hurt Pain Drugs?” Recounting the withdrawal of the FAQs, Mitchell notes both the charges that DEA’s policies are interfering with providing pain relief for patients and DEA’s response that it targets diversion, not doctors who are only a very small part of the diversion problem.

  6. The Mandeville, Louisiana, City Council recently voted to place a 180-day moratorium on permits or licenses for pain management clinics. The council took the action because of problems with pain management clinics in Slidell and Pearl River, Louisiana.

  7. State charges against the former Professional Pain Management of Ohio, pharmacists, and physicians for engaging in a pattern of corrupt activity and drug trafficking have been dismissed without prejudice. The U.S. Attorney for the Northern District of Ohio has decided to prosecute the case.

  8. The three Myrtle Beach, South Carolina, physicians who were convicted in 2003 of illegally prescribing pain medications, have had their prison sentences reduced. Dr. Ricardo Alerre’s sentence was reduced from 19 years to 2 years; Dr. Deborah Bordeaux’s sentence was reduced from 8 years to two years; and Dr. Michael Jackson’s was reduced from 24 years to 2 1/2 years.

  9. The Fourth Circuit heard sitting in Williamsburg, Virginia, heard oral arguments on March 17 regarding the conviction of Dr. William Hurwitz. Among the arguments is that the judge failed to instruct the jury that it should consider whether Hurwitz acted in good faith in his prescription practices.

  10. Arab News carried an article titled “How US War on Drugs Frightens Doctors and Punishes Patients.”

Other Developments

  1. A new study in the March issue of Pediatrics reports the result of a survey of parents whose children have died as to what they think is most needed during the dying process.

  2. Among the areas parents identified to be of the highest priority were: 1) honest and complete information; 2) ready access to staff; 3) communication and care coordination; 4) emotional expression and support by staff; and 5) preservation of the integrity of the parent-child relationship. The authors noted that one difficulty of increasing the availability of palliative care for children is that such care is not generally reimbursable by insurance.

  3. Art Buchwald, the Pulitzer-Prize winning author, has opted to forego dialysis to prolong his life. Instead, he is continuing his column in the Washington Post, musing about the process of dying, while visiting with friends and family members from a bed in a Washington, D.C., hospice. One of his columns urges his readers to appoint a family surrogate to make health care decisions. In an article in USA Today, he spoke about how difficult it was to convince his three children that he should stop dialysis.

  4. The March 31 one-year anniversary of Terry Schiavo’s death has sparked a number of newspaper articles. The Houston Chronicle carried an article that noted that the visits to the Internet site for the U.S. Living Will Registry increased from 500 a day to 50,000 a day when the Schiavo case was in the headlines. The number of registered documents on the registry has quadrupled. Requests for Aging with Dignity’s “Five Wishes” document is double that from a year ago. Michael Schiavo is promoting his book, Terri: The Truth, and Ms. Schiavo’s parents have written a book, A Life That Matters: The Legacy of Terri Schiavo —A Lesson for Us All.

  5. The March 27 broadcast of “All Things Considered” on NPR featured the audio diary of Stewart Selman who, at 48 years of age, was diagnosed with a brain tumor. In the diary, he reflects on his final year of life. The broadcast intersperses his thoughts with his wife’s personal thoughts on how the illness affected her and their children. NPR also carried background material on the broadcast as well an interview with Sarah Gupta, a social worker and director of support services for the Brain Tumor Society, about the things caregivers should know.

  6. Health and Human Services’ Agency for Healthcare Research and Quality has released a new interactive web-based tool for states to use in measuring health care quality. It is based on the 2005 National Healthcare Quality Report and the National Healthcare Disparities Report. The State Snapshot tool provides information for each state, such as summary measures of the quality of types of care and settings of care.

  7. The Argus Leader reported that the Sioux Falls, South Dakota, School District will not honor a “Do Not Resuscitate” order for a student who suffers from Kearns-Sayre syndrome. The 19-year old, a student in special education classes, has already outlived his prognosis. He is blind and nearly deaf and is completely reliant on his pacemaker to keep his heart beating. A DNR order is on file with hospitals and emergency medical services. Officials with the school district noted that the Minnesota school board association recently recommended that school boards refuse to honor DNR orders without a court order. The Marlborough, Massachusetts, school district is also examining whether it should have a policy addressing the needs of terminally ill students who have DNR orders on file. In 2004, the state Department of Education set up a program whereby, if a child has a DNR order, a physician can submit a Comfort Care/DNR Order Verification to the Office of Emergency medical Services and obtain an identifying bracelet and a “Comfort Care” form. Under state law, these are needed so that EMTs and other first responders can recognize and accept the validity of a DNR order. In North Carolina, schools have until July 1 to develop a policy addressing the treatment of terminally ill students in school. Brunswick County school board has preliminarily determined that its policy will be to refuse to honor DNR orders.

  8. A recent Canadian study, published in the Canadian Medical Association Journal, showed that the number one concern among dying patients and their families is that the have trust and confidence in the medical professionals who are treating them. The other four top concerns are: not being kept alive on life support when there was little hope of meaningful recovery; getting honest information about one’s condition; having time to put one’s affairs in order; and not being a physical or emotional burden on one’s family. Interestingly, the Canadian patients surveyed ranked dying in the location of choice only 24th in importance.

  9. In an article in the March 27 issue of Archives of Internal Medicine, geriatrician Holly M. Holmes, M.D., and her colleagues have suggested a new prescribing framework for elderly patients in the article “Reconsidering Medication Appropriateness for Patients Late in Life.” In addition to the usual risk versus benefit analysis, the authors suggest that physicians weigh the treatment against a patient’s life expectancy, the time to treatment benefit, the goals of care, matching these goals with the treatment targets. The March 13 issue of the journal reported the results of a literature search regarding the accuracy of surrogate decision makers. The survey revealed that one-third of the surrogates incorrectly predicted patients’ end-of-life treatment preferences. According to the articles, the data undermine the claim that reliance on surrogates is justified by their ability to predict incapacitated patients’ treatment preferences.

  10. The Hospice Foundation of America is participating in three sessions of Care Connection’s telephone network geared for caregivers of those with dementia. These sessions are held on Thursday evening at 9:00 p.m., Eastern time. The March 16 session presented Hospice 101. The April 20 and May 18 session will focus on how to get hospice care and issues surrounding dementia patients and hospice use. Care Connection is an alliance between the Alzheimer’s Foundation of America and Ask Dr. Jamie. Jamie Rofnofsky, a psychologist and professional life coach, hosts and teleconferences and provides coaching.

  11. The British Medical Journal’s March 18th issue reported the suicide and attempted suicide of parents who took their children’s pain medication after the death of their child at home. The article, titled “Parental Suicide After the Expected Death of a Child at Home,” noted that, with palliative care being more widely available at home, opioid-based painkillers are available to parents who are grieving their child’s death.

  12. Beliefnet is conducting a poll among its readers as to their preferences should they become terminally ill. So far, among the more than 10,000 readers who have responded, the majority (57%) stated that they didn’t want any artificial means to prolong their lives, but did desire medication for pain control.

  13. The New Republic (online version) carried an article by Ezekiel J. Emanuel, the author of The Ends of Human Life: Medical Ethics in a Liberal Polity, which reviewed the steps that have been taken, both in legal decisions and medical practice, to improve end of life care for Americans. He points out, however, that, in his view, there is much that still needs to be done to ensure that patients and their families, instead of legislatures and courts, make medical decisions for end-of-life patients.

  14. “Deathbed Phenomena and Their Effect on a Palliative Care Team: A Pilot Study” appeared in the January/February issue of the American Journal of Hospice & Palliative Medicine. The article reports on a study conducted by the palliative care team at Camden Primary Care Trust in the United Kingdom that demonstrated that deathbed phenomena (DBP), such as visions and experience of light, are commonplace. The authors suggest that the lack of education or training by palliative care teams regarding DBP means that many are not reported and that patients typically prefer to talk to nurses rather than doctors about their experiences.

  15. The Royal College of Obstetrics and Gynaecology recently issued a consultation document stating that very premature babies were taking up intensive care space that could be used for healthier babies. According to the Telegraph News, the statement reflects a growing opinion among physicians that treatment should be withheld from babies born under 25 weeks’ gestation. It is estimated that babies born under 25 weeks could cost three times as much to educate by the age if six as full-term babies.

red logo


Trial Advocacy Training for OAG-NV

December 15 - 18, 2014
Carson City, NV
Contact: Bill Malloy

Deposition Skills

January 8 - 9, 2015
Tampa, FL
Contact: Bill Malloy

Voir Dire

January 14 - 16, 2015
New York, NY
Contact: Francesca Liquori

Human Trafficking for State Prosecutors: Bismark, ND

January 20 - 21, 2015
Bismark, ND
Contact: Judy McKee

Legal Writing for OAG-CA

January 21, 2015
Los Angeles, CA
Contact: Bill Malloy

Trial Advocacy Training for OAG-AS

January 26 - 29, 2015
Pago Pago, Am. Samoa
Contact: Bill Malloy