October 2005

NEWS FROM ATTORNEYS GENERAL OFFICES

  1. In early October, Arkansas Attorney General Mike Beebe announced that his office had negotiated a settlement agreement with Beverly Enterprises, Inc., over allegations of mistreatment and neglect of residents in twelve nursing homes operated by the company. Under the terms of the settlement, Beverly paid $1 million into the Arkansas Medicaid Program Trust Fund and has agreed to invest a minimum of $500,000 to improve their nursing homes in Arkansas. General Beebe announced the settlement during National Nursing Home Residents’ Rights Week, which was celebrated the first week of October.

  2. With the marketing of the new Medicaid Part D prescription drug program, many Attorneys General are posting information about the program on their websites. Illinois Attorney General Lisa Madigan, in her consumer issue of the month, addresses the opportunity for fraud that the marketing of the program offers. She warns consumers that unsolicited salesman may not go door-to-door to market the program and emphasizes that consumers should never give an unsolicited salesperson bank account numbers, social security numbers, or personal financial information in person or over the phone.

  3. In September, Louisiana Attorney General Charles Forti Jr. reported that the owners of St. Rita’s Nursing Home in New Orleans had been charged with negligent homicide when thirty-four of the home’s residents drowned in the aftermath of Hurricane Katrina. In an October 3d article, the Washington Post reported that General Forti’s Medicaid Fraud Unit is also investigating another six hospitals and thirteen nursing homes in the deaths of elderly patients following the hurricane. The question of whether to evacuate nursing home residents from areas in a hurricane’s path was raised again during Florida’s preparation for Hurricane Wilma.

  4. Missouri Attorney General Jay Nixon received a distinguished service award from the Missouri End-of-Life Coalition at the state’s end-of-life summit held in Jefferson City on October 6. The award recognizes General Nixon’s work to help Missourians in addressing end of life issues and decisions.

  5. In the October 5 issue of The Minnesota Daily, the student-produced newspaper of the University of Minnesota, Minnesota Attorney General Mike Hatch is applauded for his signing the letter sent to the federal Drug Enforcement Agency earlier this year outlining twenty-nine Attorneys General’s concerns about the DEA’s current enforcement methods against illegal controlled substance diversion.

  6. New Hampshire Attorney General Kelly A. Ayotte has announced the Grand Jury indictments against two individuals for allegedly stealing pain medications from nursing home patients under their care.

COURT DECISIONS

  1. In Rogers v. Department of Health, 2005 Fla. App. LEXIS 16464 (Fla. Dist. Ct. App. Oct. 18, 2005), the court reversed the findings of the Board of Medicine of the Department of Health that Dr. Rogers had failed to meet the applicable standard of care and improperly prescribed narcotics. The court quoted the decision of an earlier Board in Department of Health, Board of Medicine v. Heller, DOAH Case No. 00-4747PL, 2001 WL 666972, in which the judge stated that, to establish guilt, it must be proven that the accused doctor was “not practicing medicine when he prescribed the drugs in question but instead was engaged in an illicit (and probably often times criminal activity . . . .”

  2. In the United Kingdom, a High Court judge in Re Wyatt, 2005 EWHC 2293 (FAM) (available on LEXIS), has reversed his ruling from a year ago that a severely disabled two-year old girl should not be artificially ventilated should a crisis occur. The “Baby Charlotte” case has been heavily covered by the UK media. Charlotte Wyatt was born at twenty-six weeks gestation with brain, lung, and kidney damage. A year ago, the Portsmouth Hospital NHS trust took the case to the courts because Charlotte’s parents would not accept the doctors’ conclusion, based on British Medical Association guidelines (Withholding and Withdrawing Life Prolonging Medical Treatment) that she should not be ventilated. Charlotte has not been able to leave the hospital since she was born. In light of her slightly improved condition, the judge determined that the “do not ventilate” order should be lifted.

OTHER DEVELOPMENTS OF INTEREST

  1. The September-October 2055 issue of the The Clinical Journal of Pain contains a book review of a new book by Judith A. Paice, Director of the Cancer Pain Program in the Division of Hematology-Oncology and a Research Professor of Medicine, Northwestern University Feinberg School of Medicine. The book is titled “Universal Access to Palliative Care—Challenges and Opportunities”.

  2. The current issue of the Journal of Pain contains the results of a study conducted by researchers at the University of Michigan Medical School that found that pharmacies in minority neighborhoods are not nearly as likely to carry sufficient supplies of frequently-prescribed opioid painkillers as are pharmacies in white neighborhoods. The researchers thus opined that minorities are routinely undertreated for chronic pain. The article is titled “Differences in Prescription Opioid Analgesic Availability: Comparing Minority and White Pharmacies Across Michigan._ In that same issue, there is a study of “ Trends in Abuse of OxyContin« and Other Opioid Analgesics in the United States: 2002-2004.” The authors found systematic data that, over the past five years, opioid analgesic abuse has increased among street and recreational drug users, with OxyContin and hydrocodone products the most frequently abused. They conclude that steps need to be taken to reduce prescription drug abuse, but that very great care needs to be exercised in the nature of these actions so the legitimate and appropriate use of these drugs in the treatment of pain is not compromised.

  3. The October 5, 2005, issue of the Journal of the American Medical Association included an article titled “The Supreme Court’s Influence on Medicine and Health.” The article reviews the Rehnquist Court’s decisions between 1986 and 2005, noting that, in a series of cases, the Court recognized that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment. The article also states that the Court’s most pioneering work in the field was in end-of-life medical care, citing Cruzan v. Director of Missouri Department of Health, 497 U.S. 261 (1990). The author opines that, with the retirement of Justice O’Connor, the Court’s federalism revolution may subside.

  4. Two articles from the December 20, 2005, issue of the Journal of Clinical Oncology, were published on-line, ahead of the print issue. In ”End-of-Life Care Preferences of Pediatric Patients with Cancer,” the authors interviewed pediatric patients with advanced cancer to identify their preferences about end of life care and the factors that influenced their decisions. The authors concluded that those patients that were involved in an end of life decision understood the consequences of their decision and were capable of participating in the decision process. The authors of ”Parent and Physician Perspectives on Quality of Care at the End of Life in Children with Cancer” found that, for parents of children who die of cancer, the principal determinant of high quality physician care is doctor-patient communication. In contrast, the ratings of physicians depended on biomedical, rather than relational, aspects of care.

  5. The Oregon Governor’s Commission on Senior Services has published a new, updated version of ”Being Prepared: A Resource Guide for End-of-Life Decisions and Planning.” It is being distributed to Oregon Agencies on Aging in November.

  6. World Hospice and Palliative Care Day was celebrated on October 8 to promote the need for the expansion of hospice and palliative care services around the world. Lending his support, Archbishop Desmond Tutu told a BBC interviewer that he was passionate in supporting the hospice movement, desiring to see that people “leave life with dignity, peacefully, and with as much comfort as can be provided.” To complement the celebration, those supporting hospice and palliative care are urged to sign a petition requesting that policymakers and government officials recognize the needs of people living with terminal illness and their loved ones and increase the availability of hospice and palliative care to meet those needs. To coincide with the awareness-raising event, the British charity, Help the Hospices, issued a report, developed in partnership with the Open Society Institute, titled ”Suffering at the End of Life—the State of the World.”

  7. The Funeral Directors Association of New Zealand has published a book, titled Last Words, that examines the various approaches to death by different cultures in New Zealand. Information is provided for groups such as Assyrian Christian, Bah└’╠, Buddhist, Cambodian, Catholic, Chinese, Cook Islands, Croatian, Ethiopian, Filipino, Indian, Iranian, Iraqi, Japanese, Jehovah’s Witness, Jewish, Muslim, Presbyterian, Ringatu, Samoan, Serbian, Somalian, Thai, Tuvaluan, and Zoroastrian.

  8. A recently released comprehensive report, Challenges and Opportunities to Improve Pediatric Palliative Care in Maryland, makes recommendations for improving the care of dying children in Maryland and summarizes the results of the Maryland Pediatric Care Summit held last fall at the Johns Hopkins University School of Nursing (JHU SON) and hosted by the Johns Hopkins Harriet Lane Compassionate Care Program (HLCC). The report notes that nearly 1,000 of the more than 40,000 people who die each year in Maryland are children under 18 and that, with almost every one of those deaths, a pediatric palliative care program can offer support to the child and to the family through the dying process and beyond.

  9. The September 29th issue of the New England Journal of Medicine discusses the Harvard Medical School course that teaches students about end of life care. In ”Becoming A Physician: Learning from the Dying,” the authors note that the course focuses on a series of one-on-one interviews by students with a patient who has a terminal disease. The students also meet together in group discussions involving central issues in end of life care.

  10. Transcripts of the arguments in Gonzales v. Oregon, No. 4-623, argued Oct. 5, 2005, are available on the web.

  11. A recent article, published in the journal Health Policy, titled ”State Policy Affecting Pain Management—Recent Improvements and the Positive Impact of Regulatory Health Policies,” describes an analysis of a criteria-based evaluation of state drug control and professional practice policies impacting the use of controlled substances for pain management. The study shows that current regulatory policies contained more language encouraging appropriate pain relief and avoided language restricting professional decision-making and patient treatment.

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