February 2008

News from Attorneys General Offices

  1. Forty-one Attorneys General and three directors of Medicaid Fraud Units sent a letter expressing strong support for the bipartisan Patient Safety and Abuse Prevention Act of 2007 (S. 1577, H.R. 3078), a bill that would establish a nationwide system of background checks for long-term care workers.
  2. Florida Attorney General Bill McCollum announced that a St. Johns County doctor received a 10-year jail sentence after pleading guilty to playing an active role in a drug trafficking operation that distributed illegally prescribed hydrocodone. Lawrence Friedes pled guilty to two counts of trafficking hydrocodone and one count of writing a prescription for monetary benefit. Also in February, General McCollum announced the arrest of a registered nurse from Columbia County for allegedly fraudulently obtaining controlled substances. She is accused of diverting prescribed narcotic pain relievers from patients and then falsifying records.
  3. New Jersey Attorney General Anne Milgram recently announced that a mother and son pled guilty to racketeering charges. Stephanie McLucas admitted that she was a runner for a narcotics ring that generated lists of names used by a Livingston doctor to write fraudulent prescriptions for painkillers. Her son, Jason Allen, was also a runner for the ring. The doctor, Mario Comesanas, pled guilty last year to first-degree racketeering and second-degree distribution of narcotics.
  4. Texas Attorney General Greg Abbott executed an emergency court order to protect residents of an unlicensed assisted living facility in Arlington. According to the application for a restraining order, state investigators believe at least one resident was sexually abused by one or more of the three registered sex offenders living at the facility.
  5. Vermont Attorney General William H. Sorrell announced that his office has charged Amber Maloney, a licensed nursing assistant, with diverting narcotics and abusing a vulnerable adult. According to the complaint, she is alleged to have removed duragesic Fentanyl patches from residents at the facility, depriving them of the painkiller prescribed by their physicians.
  6. Wisconsin Attorney General J.B. Van Hollen announced the conviction of the former chief operating officer and administrator of a nursing home in Milwaukee for theft and neglect of residents. Mason was accused of stealing money from the residents’ trust fund checking account.

Judicial Developments

  1. Bernard Rottschaefer, M.D., has lost his appeal of his conviction for illegally prescribing OxyContin. In United States v. Bernard Rottschaefer, Nos. 07-1142 & -1673 (3d Cir. Feb. 12, 2008), the court held that the “newly-discovered evidence” from a related civil malpractice case was not really new, but simply “nothing more than cumulative impeachment evidence that is unlikely to produce an acquittal.”
  2. In Delaware, the father of a woman who has been deemed to be in a persistent vegetative state is appealing the award of her guardianship to the mother who wants to remove the feeding tube. Lauren Richardson overdosed on heroin in August 2006. She was kept alive through feeding tubes and a breathing machine in order to allow her to give birth to her daughter in February. Her mother, Edith Towers, maintains that her daughter did not wish to be kept alive through artificial means. Her father disputes that and maintains that his daughter is responsive. The court has ordered that the father, who is being supported by the Delaware Pro-Life Coalition, stop releasing any recent still images of Lauren or video for public distribution.
  3. DeKalb Medical Center has appealed the decision of the Georgia appellate court in the case of DeKalb Medical Center, Inc. v. Hawkins, 288 Ga. App. 840 (2007). In that decision, rendered in November, the court noted that, under Georgia law, the decision as to whether to continue or terminate life support for an incompetent adult patient who does not have a “living will” and who has no reasonable possibility of regaining cognitive functions belongs exclusively to the patient's family or legal guardian, not to the hospital, the patient's physicians, or the state. The lawsuit against the medical center for wrongful termination of life support for 18-year old Tara Bottoms-Hawkins is being brought by Tara’s mother on behalf of Tara’s son, Emmanuel. The child was born while Tara was on a respirator. Two days after the birth, hospital officials discontinued life support and Tara died shortly thereafter.
  4. A preliminary hearing will be held in the case of a transplant surgeon in California who has been accused of hastening the death of an individual in order to use his organs for transplant. Dr. Hootan C. Roozrokh has been charged with three felony counts in relation to his treatment of the patient in 2006.
  5. A judge in Winnipeg, Canada, has ruled that an 84-year-old Orthodox Jewish man will remain on life support until the dispute between his family and his doctors can be fully developed and decided at trial. A trial date has not yet been set.
  6. An article in Canada’s Times Colonist reviews the cases of Zongwu Jin whose family won a temporary court injunction requiring a Calgary hospital to maintain life support. Jin’s subsequent recuperation enabled him to sit up in bed and talk. However, the hospital has asked an appellate judge to rule that only physicians may decide when life support should be withdrawn. A hospital in Winnipeg is also contesting an injunction that is keeping an elderly patient on life support.

Legislative/Regulatory Developments

  1. Rep. David Loebsack (D-IA) has introduced H.R. 5465, the Military Pain Care Act, which would require the Department of Defense to implement a pain care initiative. The bill has eight co-sponsors.
  2. A bill to create a controlled substance prescription database is being considered by the Judiciary Committee of the Alaska Senate. Senate President Lyda Green and a bipartisan group of lawmakers are sponsoring SB 196, which would establish the database in the pharmacy board.
  3. The American Samoa Fono is considering an Advance Directive bill that would set forth procedures and guidelines for providing citizens the option of stating what their end-of-life wishes are and the ability to appoint a healthcare representative.
  4. Rep. Ron Stephens (R-Savannah), a pharmacist, is sponsoring Georgia HB 455, the Georgia Prescription Monitoring Program Act, that would require monitoring of Schedule II–IV drugs.
  5. The Iowa legislature is considering two pieces of legislation which would specify who may decide how a person’s remains will be treated. SF 473 allows a “final disposition directive” which would mandate that family members be bound by the deceased person’s request. HF 2088 would extend the rights of the durable power of attorney for health care to disposition of the body. If no appointment, the bill specifies who may make decisions about funeral arrangements.
  6. Hearings have been held in Missouri on SB 732, a bill that would establish a prescription monitoring program in the state. The proposed legislation would monitor all prescriptions for Schedule II through V medications.
  7. The Washington legislature is considering a bill, SB 6631, that would adopt the Life Settlements Model Act. A “life settlement” or “viatical settlement” is a written agreement between the policy owner and a third party that pays the owner less than the death benefit of the insurance policy in return for the policy owner’s transfer of the death benefit to the provider. Twenty-three other states have laws that govern such arrangements.
  8. The Washington Senate Judiciary Committee recently held hearings on HB 2494, which directs the state Department of Health to develop a simple form that states what a person’s preference is regarding and life-sustaining treatment. It has already passed the House.
  9. On January 14, 2008, the Centers for Medicare and Medicaid Services proposed a rule change that would allow states to adopt a self-directed personal assistance services plan option in their Medicaid programs. The proposed regulations require states to provide plans for mitigating risk to consumers, including measures for determining who is eligible to serve as workers and when surrogate decision makers should be assigned for those with impairments.
  10. DEA has been working on developing a regulation for electronic prescribing of controlled substances. It has now sent its proposal to the Department of Justice where it is under review.

Pain Management

  1. Amsterdam Memorial Hospital in New York has begun an innovative program to integrate chiropractic care with traditional medical care in treating chronic pain patients.
  2. Pain Treatment Topics has posted a number of articles regarding fibromyalgia pain as well as an article from Mayo Clinic Proceedings giving practical guidance for clinicians on urine drug screening.
  3. An article in the Boston Globe highlighted the increased potential for liability for doctors that a Massachusetts Supreme Judicial Court has created by its decision in Coombes v. Florio, 450 Mass. 182 (2007). In that decision, the court allowed a lower court to hear a lawsuit resulting from a car accident that killed a 10-year old boy. The plaintiffs sued the driver’s doctor, alleging that he had prescribed various medications without adequate instructions about driving. According to the author, Dr. Victoria McEvoy, the decision will have a chilling effect on prescribing practices.
  4. Researchers have discovered that naked mole rats are not affected by exposure to acid or capsaicin. These mammals do not have substance P, a neurotransmitter found in other mammals, and thus are impervious to certain types of pain. Results of the research with naked mole rats, published in PLoS Biology, will hopefully eventually translate into developing better controls for chronic pain in humans.
  5. Researchers from Northwestern University’s School of Medicine found that the brains of people with chronic pain have a disruption in what is called the default-mode network. Healthy brains are in a state of equilibrium; when one area is active, the others quiet down. However, in people with chronic pain, a front region of the cortex never deactivates, potentially changing neuron connections or even causing neurons to die. The research was reported in the February 6 issue of the Journal of Neuroscience and discussed in an article in ScienceDaily.
  6. ABC News on-line “on-call” feature includes information on pain management and includes a question and answer feature.
  7. CBS Evening News ran a series called “Easing the Pain.” The series included information on the development of new technologies that could help to limit the abuse of narcotics, a new study being conducted at Beth Israel on transdermal direct current stimulation to help control pain, and pain management in newborns and other infants.
  8. The American Academy of Pain Medicine held its annual meeting this month in Florida. Topics included treating pain as a disease, opioid-induced hyperalegesia, and the relevance to pain medicine of addiction.

Prescription Drug Diversion

  1. A number of news outlets carried stories this month concerning prescription drug diversion. Among these was the St. Petersburg Times which ran a series of articles on prescription drug diversion in the Tampa Bay area. Sarasota’s Herald Tribune published an investigative report, focusing on the large number of state overdose deaths in a tri-county area and noting that the abuse of prescription drugs now kills more people in Florida than all non-prescription drugs combined. A news report out of Michigan also focused on the prescription drug diversion issue in that state and noted that Northern Michigan has a Drug Death Investigation Team that focuses on prescription drug abuse. ABC News carried a story regarding Hollywood’s addiction to painkillers, recounting the story of fifteen celebrities who have dealt with addiction issues. Omaha, Nebraska, KETV-7’s report focused on the rise in the number of teen-agers abusing prescription drugs. Finally, Indiana’s Channel 8, in an “I-Team” report, focused on methadone abuse. The report questioned whether patients in methadone treatment should be allowed a thirty-day dose of medication, noting that the other states have much more restrictive laws.
  2. An op-ed in the Wall Street Journal, authored by Dr. Scott Gottlieb, raises concerns about the possibility that DEA is trying to have a role in placing additional restrictions on existing drug. He cites, as an example, DEA’s campaign to reschedule drugs like Vicodin into a stricter classification. Dr. Gottlieb is a resident fellow at the American Enterprise Institute and has held various positions with FDA.
  3. An article in the Chattanooga Times Free Press notes that Tennessee is no longer the state with the highest rate of prescription drug use. The drop is attributed to statewide efforts to curb the rate of drug use, particularly among the TennCare population. One program that has developed is the Tennessee Prescription Safety program. The program will allow physicians and pharmacists to access a patient’s prescription history with a swipe care, distributed free of charge to the patient.
  4. The U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) just recently released a report regarding the misuse and abuse of buprenorphine. The drug, marketed under the name Suboxone, is used to treat addiction. An investigation by the Baltimore Sun reported abuse of the drug, including illegal street sales in New England and in Baltimore. Senator Bernard Sanders (I-VT) has called for an investigation as to why federal agencies, who knew about the diversion issue for two years prior to releasing the information, did not release the information in a timelier manner.
  5. SAMHSA’s website includes a new report on the treatment admissions for addictions. The largest share of treatment admissions is still for alcohol abuse, but the report also discloses that admissions for the treatment of prescription drug abuse increased from 1 percent in 1996 to 4 percent in 2006.
  6. An AP News Story reported that malpractice attorneys worked closely with federal prosecutors to help indict Dr. Stephen Schneider. Schneider has been charged with illegally prescribing painkillers linked to the overdose deaths of 56 patients. According to news reports, Dr. Schneider’s former patients have filed a lawsuit asking a federal judge to overturn the Kansas Board of Healing Art’s decision to suspend his medical license. Their lawsuit is being backed by the Pain Relief Network.
  7. Three doctors associated with Global Care clinics in Covington and Metairie, Louisiana, have surrendered their DEA licenses to prescribe controlled medicines. DEA investigators are looking into the clinics’ practices.
  8. Dr. Lonnie Sipsy was sentenced to one year and a day in federal prison and a $5,000 fine on his guilty plea to obtaining drugs by fraud. He and another doctor, Jeffrey Bates, wrote prescriptions for hydrocodone for one another while they were at the Charleston Area Medical Center in 2002 to 2004.
  9. A former East Stroudsburg, Pennsylvania, psychiatrist, Harold Pascal, was sentenced to six to eighteen months in county jail for illegally prescribing controlled substances.
  10. A doctor practicing in Salem, Utah, Max Cannon, has been charged by local prosecutors with possession with intent to distribute a controlled substance.
  11. A Murrieta, California, psychiatrist, Dr. Joel S. Dreyer, whose license was recently suspended by state officials, has been charged by federal officials with unlawfully distributing controlled substances including Oxycodone and Hydrocodone.
  12. Dr. Ali Shaygan of Miami Beach, Florida, has been indicted on twenty-counts of unlawfully distributing controlled substances by federal officials. It is alleged that his prescribing practices caused the death of one of his patients last June. (United States v. Ali Shaygan, No. 1:08-cr-20112-ASG (S.D. Fla. filed Feb. 8, 2008).
  13. Dr. Joel Dreyer of Murrieta, California, was arrested on a federal complaint that alleged he was prescribing controlled substances outside the realm of legitimate medical treatment. Dr. Dreyer faces similar state charges.
  14. Three Florida doctors, employed by Chronic Pain Management in Pensacola, have been indicted on illegally prescribing controlled substances. Dr. Geraldo Klug, Dr. Rogelio Martinez, and Dr. Osler Rivas worked for the clinic, which was managed by Mark Antigues of New Orleans. He has also been indicted.

Other News of Interest

  1. The first National Healthcare Decisions Day on April 16, 2008, is designed to encourage advance care planning for all adults. In support of this effort, a webinar is scheduled for Wednesday, March 19, 2008, from 2:00 to 3:00, EST. It will feature Dr. Ira Byock, director of palliative medicine at Dartmouth-Hitchcock Medical Center, and Bill Colby, J.D., senior fellow, Law and Patient Rights, Center for Practical Bioethics, who represented the family of Nancy Cruzan in the first right-to-die case heard by the U.S. Supreme Court. To register, go to www.mcguirewoods.com/events. There is a nominal fee of $20 to register.
  2. A new study, published in the Archives of Internal Medicine, found that 42 percent of patients with advanced forms of dementia were given antibiotics at a nursing home in the two weeks before they died. The researchers questioned the efficacy of antibiotic treatment in this group of patients in view of the concern about use of antibiotics spurring the development of drug-resistant bacteria.
  3. The December 2007 issue of the journal Chest included an article titled “Futility.” The article traces the evolution in the debate about how to resolve cases where the family insists on interventions that physicians consider futile.
  4. Dr. Kirth Steele wrote an article for the Morning Call, Allentown, Pennsylvania, stressing that it is each of us has a personal responsibility to prepare for his death and ease the burden of loved ones by talking openly and honestly about how we want to end our lives.
  5. An interesting article in Critical Care reported that doctors do not think like the general public when making decisions about treating severely ill patients.
  6. The Journal of the American Geriatrics Society published the results of a study that looked at symptom experience of dying long-term care residents. Pain and dyspnea occurred in about half the patients prior to death. However, while almost all patients received medication for pain, nearly a third received none for dyspnea.
  7. An article in Time Magazine by Dr. Scott Haig, an orthopedic surgeon, related his experience with an elderly Italian woman with a broken hip. Titled “When Does ‘Do Not Resuscitate’ Make Sense?” the article raises ethical issues surrounding issuance of a DNR and refusal of aggressive treatment.
  8. The GAO issued a report in December, commissioned by Sen. Ron Wyden (D-Ore), titled “End-of-Life Care: Key Components Provided by Programs in Four States.” The report identified six key elements of end-of-life care: Care management, supportive services, pain and symptom management, family and caregiver support, communication, and assistance with advance care planning.
  9. An article posted on Philly.com reports on the mandate of the task force assembled by Pennsylvania’s Public Welfare Secretary Estelle Richman to eliminate barriers and erase stigma in providing palliative care to children.
  10. The American Bar Association’s House of Delegates adopted two proposals at its recent meeting that touches on end-of-life issues. Resolution 104A calls on states to develop innovative long-term care financing programs and 105A calls for the development of special prosecutorial units to investigate and prosecute elder abuse. A resolution calling for safeguards to balance pain management medication prescription and reduction of prescription drug diversion and abuse was withdrawn.
  11. The Congressional Budget Office released a report, “Technological Change and the Growth of Health Care Spending” in late January. The report identifies “the greatly expanded capabilities of medicine brought about by technological advances” as the “largest single factor driving spending growth.” The report notes that a cost-benefit analysis is not always undertaken before services enter common clinical practice.
  12. The February 5 issue of the Washington Post summarized a presentation given at the annual meeting of the American Academy of Hospice and Palliative Medicine. The presentation added to the empirical studies that suggest that African-Americans want more aggressive end-of-life care than do other ethnic groups. Prof. Kimberly Johnson discussed the significant gap in hospice use between white and African-American patients and identified three causes for the gap.
  13. Two articles regarding advance directives and an accompanying editorial appeared in the December issue of Mayo Clinic Proceedings. One article examined the advance directives submitted to Mayo Clinic Rochester. The study showed that most patients designated a health care agent and granted the agent broad decision-making powers. The other article reported that only 35% of health care professionals at a community-based cancer center had completed an advance directive.
  14. The web edition of The Hawk Eye reported on the Iowa State Penitentiary’s hospice program which, unlike other prison hospice programs, is run by the inmates themselves and not outside volunteers.
  15. The Manitoba College of Physicians and Surgeons issued a statement on January 30, 2008, that binds all doctors within the province. The statement supports giving doctors the final authority to withdraw or withhold life-sustaining treatment unless there is an overriding health-care directive. If there is a conflict between the family and the doctor, a second opinion must be obtained. The policy also sets out specific processes for a doctor to follow, especially when a patient proxy demands that life support continue.
  16. The National Institutes of Health has published End of Life: Helping with Comfort and Care. The publication is based on research, some supported by the National Institute on Aging, augmented with suggestions from practitioners with expertise in helping individuals and families through the end-of-life experience.
  17. Senator Herb Kohl, Committee Chairman, Senate Special Committee on Aging, and Senator Gordon Smith, Ranking Member, released a report in December suggesting federal actions that might be taken to improve the guardianship system. AARP also released a report in December, Guarding the Guardians: Promising Practices for Court Monitoring. The report reviews model court guardianship monitoring practices.
  18. Market.watch published an article, based on Consumer Reports Money Advisor, with five steps that should be taken prior to inviting an elderly family member to live in your home.
  19. A reflection on the shamanistic quality of the relationship between critically ill patients and their doctors was published in the February 17 issue of the New York Times. It was written by David Rieff, author of Swimming in a Sea of Death: A Son’s Memoir.
  20. The Catholic diocese of Providence, Rhode Island, has published a pamphlet dealing with end-of-life issues from a Catholic perspective. At the end of February, the Vatican hosted a meeting, sponsored by the Pontifical Council for Life, named “Close by the Incurably Sick and the Dying: Scientific and Ethical Aspects.” The goal was to examine the ethics of various medical therapies.

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