May 2006

News from Attorneys General Offices

  1. Iowa Attorney General Tom Miller’s office has crafted an arrangement whereby the sixty or so elderly residents of a retirement home will have more assurance that the facility, Heather Manor, will remain open and can fulfill contracts guaranteeing its residents “life care.” In exchange for dropping civil fraud charges against the facility’s owners, the men have agreed to give up their interest in the facility. The three men, Robert McClurg, Larry Weide, and Dan Spencer, purchased the facility from the Iowa State Education Association in 2002 for $1.75 million, $2 million less than its assessed value. The Attorney General’s Office has charged that the owners illegally funneled money from the charity that runs Heather Manor into their own for-profit real estate company. The agreement will allow the primary lender to foreclose on the property and sell it.
  2. Maryland Attorney General J. Joseph Curran Jr. recently announced that a new, user-friendly advanced directive form is available to the state’s citizens. The new form, authorized by S.B. 369, is available on the General Curran’s website.

Judicial Developments

  1. The U.S. Court of Appeals for the District of Columbia issued its decision in Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, No. 04-5350 (D.C. Cir. May 2, 2006). The issue was whether FDA’s policy, which bars the sale of new drugs that have been determined to be safe for expanded human testing, violates the substantive due process rights of terminally ill persons. The court remanded the case to district court so that it might determine whether the policy is narrowly tailored to serve a compelling governmental interest.
  2. The Maine Supreme Judicial Court is considering a case that questions whether the state has the right to make an end-of-life decision for a child in foster care or whether the right remains with the child’s parents. The case echoes the recent case in Massachusetts involving 11-year old Haleigh Poutre. In this case, the Maine Department of Health and Human Services was granted a do-not-resuscitate order for 8-month-old Matthew W., who was allegedly injured by his father. The parents argue that such a decision should be theirs, not the state’s, to make. Matthew Williams, the child’s father, has been charged with aggravated assault.

Legislative Developments

  1. Illinois has new legislation that requires criminal background checks for all current and incoming Illinois nursing home residents. Illinois is the first state to require such checks.
  2. Iowa Governor Tom Vilsack recently signed House File 2716. Designed to address the major factors impacting medical malpractice rates for Iowa doctors, it contains among its provisions a section that allows a health care professional to express sympathy to families affected by negative outcomes without the fear that the comments will be used against the professional in future court proceedings. Advocates of the legislation hope that it will improve communication between patients and their families and health care professionals.
  3. The New Hampshire legislature passed a bill designed to make end-of-life care decisions easier. It awaits Governor John Lynch’s signature. The bill eliminates the necessity of having an advanced directive notarized and would establish rules for medical orders barring the use of resuscitation to revive a patient. A controversial section of the bill gives the power to doctors and nurse practitioners to make a resuscitation decision if a person’s agent could not be immediately contacted and CPR would unnecessarily harm the person.

Other Developments

  1. According to news reports, the Spotsylvania County, Virginia, school board is wrestling with developing a policy of “do not resuscitate” orders. Nurses and school employees are not legally bound to follow a DNR directive.
  2. Two King County paramedics were instrumental in changing the Washington county’s protocol for resuscitation for some EMT units. The new protocol, dubbed “Compelling Reasons,” is a first in the United States. It gives EMTs the latitude to forgo resuscitation when they judge it to be “futile, inappropriate, and inhumane” even where there is no official paperwork. A study of the pilot program in South King County fire districts was published in the Annals of Internal Medicine.
  3. The March-April issue of Health Affairs reported the result of a study undertaken by researchers at the Dartmouth Medical School that revealed that, while Medicare spending has continued to increase, survival gains from acute myocardial infarction have stagnated since 1996. Regions experiencing the largest spending gains were not those realizing the greatest improvements in survival. In a related study funded by the Robert Wood Johnson Foundation, researchers at Dartmouth Medical School Atlas Project found that overly aggressive treatment of chronically ill elderly patient wastes billions of Medicare dollars without improving the results for the patients.
  4. The Kentucky Institute for Agency and a newly created subcommittee consisting of the delegates to the White House Conference on Aging met this month. The joint meeting discussed long-term care issues and cabinet initiatives, including a one-stop resource center for information related to services for the aging and disabled.
  5. The May 30 issue of the New York Times highlights a new program offered by Continuum Hospice Care in New York City. The program trains companions, called doulas, to be with families, if requested, while their loved ones are dying.
  6. The University of Pennsylvania Center for Bioethics’ annual symposium was held in May. The speakers focused on the symposium’s theme, “The Legacy of the Terri Schiavo Case: Why Is It So Hard to Die in America?” Among the sessions were those involving whether courts and legislators should be involved in end of life decisions.
  7. The May/June issue of Health Affairs includes the results of a study that examined hospice use among adult hospice use from 1991 to 2000. The study found that the total number of adult hospice patients tripled during the period studied.
  8. A new book, A Palliative Ethic of Care examines barriers to effective palliative care and offers a blueprint for doctors to work with their patients to develop goals for care at life’s end. It was written by Dr. Joseph Fins and has received critical acclaim, including a highly favorable review in the April issue of New England Journal of Medicine.
  9. An article in the British Medical Journal reports the result of a Dutch study that found that nursing home residents who gathered for family-style meals benefited emotionally and physically over those who were served with a pre-plated meal.
  10. A comment in the October 2005 issue of Pediatrics alerts pediatricians to the April 2005 regulations issued by the U.S. Department of Health and Human Services defining the Born-Alive Infants Protection Act, passed by Congress in 2002. The comment notes that the memoranda issued to state officials on the interaction with the Emergency Medical Treatment and Labor Act and the Child abuse Prevention and Treatment Act might revive governmental oversight of newborn treatment decisions.

Pain Management

  1. The American Society of Pain Educators has announced that its Second Annual Pain Educators Forum will be held on July 20-23 at the Sheraton Philadelphia City Center in Philadelphia, Pennsylvania. Among the topics to be discussed is the impact of FDA and DEA regulation on clinical practice.
  2. William Fisher reviewed recent prosecutions against doctors and patients in an editorial published on-line in OpEdNews on May 22. Titled, “Pain Management: A Double Standard?” the author quotes convicted South Carolina doctor, Michael Jackson, as arguing that only the “have-not” patients end up incarcerated for drug diversion.
  3. A Boca Raton, Florida, doctor has been sentenced to four concurrent 12 1/2 years in prison for illegally distributing OxyContin and other painkillers. He was also ordered to forfeit $200,000. Dr. Andrew Weiss admitted that he prescribed pills to non-patients but asserted that he provided them because he and his family were threatened.
  4. The June 2006 issue of the Journal of Advanced Nursing contains an article reporting the result of a randomized, controlled trial involving participants from pain clinics and a chiropractic office. Groups who listened to music for an hour a day for seven days reported a twenty percent reduction in pain.
  5. According to the St. Louis Business Journal, a Frontenac, Missouri, dentist has agreed to pay $70,000 to resolve drug diversion allegations under the civil provisions of the Controlled Substances Act. Dentist Jeffrey Rempala will also surrender his federal registration to dispense prescription drugs for five years. An audit of Rempala’s records determined that there was no accounting for more than 1800 dosages of controlled substances.

red logo

SAVE THE DATE

Intellectual Property Theft Training Seminar: Honolulu, HI

October 31, 2014

Contact: Judy McKee

Management for OAG-OK

November 4 - 5, 2014
Oklahoma City, OK
Contact: Bill Malloy

E-Discovery for OAG-AZ

November 13, 2014
Phoenix, AZ
Contact: Hedda Litwin

Advanced Trial Techniques and Investigator Training for OAG-MI

November 17 - 19, 2014
Lansing, MI
Contact: Bill Malloy

Legal Writing for OAG-CA

November 20, 2014
Sacramento, CA
Contact: Bill Malloy

E-Discovery for OAG-PR

December 8, 2014
San Juan, PR
Contact: Hedda Litwin