January 2008

News from Attorneys General Offices

  1. Florida Attorney General Bill McCollum announced that the owner and operator of a Santa Rosa County Adult Family Care Home, Marian Tolbert, has been arrested and charged with exploiting an elderly resident of the facility. It is alleged that she intimidated the victim into making her the beneficiary of his $10,000 life insurance policy.
  2. Pennsylvania Attorney General Tom Corbett announced the arrest of a Dubois, Pennsylvania , physician for allegedly illegally obtaining hydrocodone for his personal use. According to court documents, Dr. Thomas Bradley allegedly filled prescriptions, which he had authorized, in the names of other people. General Corbett also announced the arrest of the husband of a Harrisburg, Pennsylvania , doctor for allegedly illegally obtaining prescription drugs for his own use.
  3. Texas Attorney General Greg Abbott and the Texas Department of Aging and Disability Services (DADS) took emergency action to protect more than a dozen residents living in an assisted living facility in Tarrant County. A state district court issued an injunction against the Fort Worth facility and its manager, Bertha McCoy. A recent DADS inspection uncovered evidence indicating McCoy physically, verbally and mentally abused and threatened residents.
  4. Vermont Attorney General Attorney General William H. Sorrell recently announced that licensed registered nurse Sarah Benson has been arraigned on possession of a narcotic drug, a misdemeanor. The charges stem from Ms. Benson’s employment as a Licensed Registered Nurse at Eden Park Nursing Home in Brattleboro, Vermont, where she was working on a conditioned Vermont State Board of Nursing License that prohibited her from administering any controlled substances, required her to abstain completely from the use of any drugs, except prescribed medications, and required her to submit to random drug screenings. General Sorrell also announced this month that Brian J. McNally of Chazy, New York, pled guilty to one count of Obtaining a Regulated Drug by Deceit and one count of Making a False Statement in Records, both felonies. Mr. McNally admitted that he used his position as a Licensed Registered Nurse on the orthopedics unit at Fletcher Allen Health Center (FAHC) in Burlington, Vermont to divert intravenous liquid morphine and Percocet tablets, prescribed to post-operative hospital patients, to his own use, falsely recording that he had appropriately administered the narcotics to his patients.

Judicial Developments

  1. The U.S. Court of Appeals for the First Circuit upheld the conviction and sentencing of Dr. Mark Shinderman on, as the court described it, a “gallimaufry of criminal charges.” These charges stemmed from his unauthorized use of another doctor’s name and Drug Enforcement Administration (DEA) registration number. U.S. v. Shinderman, No. 07-1569 (1st Cir. Jan. 29, 2008).
  2. A lawsuit has been filed against Stanford University Hospital that alleges the hospital transferred a terminally ill patient without his family’s knowledge and then “lost” the body for a time. According to news reports, the family brought the lawsuit to force the hospital to review and change its protocols relating to notification of families about changes in care status for seriously ill or terminally ill patients.
  3. The Bronx, New York, Supreme Court is dealing with a lawsuit concerning who has the right to determine the future medical treatment of 16-year old Javona Peters. The teen-ager suffered severe brain damage during an operation three months ago. Her parents are not married. The mother wants to stop life support; the dad does not. Both filed for guardianship. The court has awarded guardianship to the mother, but only for the purposes of pursuing a malpractice lawsuit against the hospital. The decision on the withdrawal of life support has not yet been made.
  4. An Orange County, Texas, hospital is being sued for resuscitating a patient with a do-not-resuscitate order. The patient, Willie Patin, was transferred to the hospital from the nursing home after developing bed sores and a staph infection. The nursing home is also being sued by Patin’s son.
  5. The Pain Relief Network has announced it will seek a civil injunction barring the U.S. Justice Department from prosecuting Haysville, Kansas, physician Stephen Schneider and his wife, Linda. The organization will argue that the federal Controlled Substances Act, as applied to doctors and patients, is unconstitutional.
  6. A family in Australia lost their battle to keep their son and brother on life support. Paulo Melo, who had been injured in an automobile accident in early December, died after the Supreme Court of the Northern Territory lifted a 24-hour injunction against removal of life support. The request for a 72-hour injunction so that a Sydney neurosurgeon could fly to Darwin to assess Paulo’s chances for survival was refused. He died 17 hours after his ventilator was shut off. Bioethicist Dr. Leslie Cannold wrote an op-end in Australia’s The Age concerning the case.

Legislative Developments

  1. Indiana State Senator Sue Errington (D.-Muncie) has proposed a bill (S.B. 181) that would make state law clear as to who is responsible for making health care decisions for the incapacitated. It is modeled on a South Carolina law.
  2. A Kansas task force has been working on a draft of a prescription drug monitoring law that it will propose for adoption to the Kansas Legislature. Sen. Vicki Schmidt (R.-Topeka), a member of the task force and a pharmacist, has announced that seeing passage of some form of the law is one of her top priorities for the 2008 session.
  3. Under legislation working its way through the Ohio General Assembly, a statewide emergency-alert program to locate missing elderly persons or adults with mental impairment would be established. Dubbed “Silver Alert,” the system would allow police to use the statewide law enforcement network to notify other agencies of missing adults who are in danger. S.B. 87 passed the Senate and is now before a House committee.
  4. An Ohio doctor, William Bauer, is spearheading an effort to develop a pain patient’s Bill of Rights for Ohio. The proposed law would be similar to California’s but would include acute as well as chronic pain. The law would have five components: establish pain management as a patient’s right; establish a duty for doctors to listen and respond to a patient’s pain; immunize pain relief from legal liability; require doctors who cannot respond to a patient’s pain to refer the patient to another doctor who can; and require that all doctors be educated on pain relief.
  5. A new law in Utah, the Utah Advance Health Care Directive Act, is designed to make it easier for health-care providers to honor the wishes of people who cannot speak for themselves while nearing death. Unlike the law it replaces, it does not require a person to be “terminally ill or in a persistently vegetative state,” but, instead, requires that the patient lack healthcare decision capacity in order to take advantage of using a healthcare agent. The law incorporates a physician’s order to withhold life sustaining treatment.
  6. Some Vermont legislators are expressing concerns about the proposed policies of the Vermont Prescription Drug Monitoring Program. The database, scheduled to be operating by early June, will be maintained by the Vermont Department of Health which has been working on developing rules over the two years since the Vermont legislature passed the system.
  7. Wyoming state congressman Colin Simpson (R.-Cody) has announced his intention to prepare a bill that would upgrade Wyoming’s existing prescription drug monitoring system to real-time. Currently, the system is only upgraded monthly.
  8. Mexico City has passed legislation that allows the withholding of treatment for anyone who has signed a living will that rejects “tenacious, disproportionate or useless” medical treatment that would unnecessarily lengthen the “inevitable dying process.” The new law affects only government-run hospitals in Mexico City .

Pain Management

  1. An article in the Journal of the American Medical Association (JAMA) has sparked intense media coverage. Dr. Mark Pletcher of the University of California and his colleagues researched whether opioid prescribing is increasing in U.S. emergency departments for patients with pain and whether white patients are more likely to receive an opioid than non-white patients. The research showed that, during the 13 survey years, opioid prescribing was more likely for pain-related visits made by whites (31 %) than by blacks (23 %), Hispanics (24 %), or Asians/others (28 %). In 2005 opioid prescribing rates were 40% for whites and 32% for all other ethnic groups.
  2. The American Pain Foundation reported the results of a national survey regarding Americans’ experience with pain. The majority (72%) reported experiencing pain in the past year but also reported reluctance to seek professional help. Of the respondents, 48% reported that pain disrupts their work productivity; 65% reported disruption in recreational activities; 59%, disruption to take care of their homes; and 51%, disruption in the ability to take care of themselves and family members. Ninety-three percent of respondents agreed with the statement “people take too many pills these days.”
  3. An essay published on the website of pain-topics.org argues that practitioners should not automatically discharge patients from opioid therapy when there are concerns about substance abuse or addiction. Instead, doctors have the obligation to work with the patient and to employ substance-abuse treatment strategies in partnership with addiction and pain specialists.
  4. An upcoming issue of the Journal of Pain and Symptom Management will include a qualitative study of the types of questions women with breast cancer have about pain related to cancer. The researchers noted seven main themes: understanding cancer pain; knowing what to expect; options for pain control; coping with pain; taking with others with cancer pain; finding help managing pain; and describing pain. The researchers noted that the questions are difficult to address within the context of a typical consultation.
  5. The January 2008 issue of Arthritis Care and Research includes a study of the efficacy of the People with Arthritis Can Exercise (PACE) program. Over an eight-week people, participants who attended nine or more classes had improvements in pain, fatigue, and stiffness as well as improvement on being able to accomplish ten-pound lifts and chair stands as well as improvements in self-efficacy for arthritis management. Significant relief of symptoms was still experienced at six months.
  6. The University of Arizona College of Medicine is developing a clinical rotation, which will begin in 2009, that would add about forty hours of pain education to the seven hours now taught to medical students in their first two years.
  7. The voluntary dosing guidelines instituted by the State of Washington last year were the subject of a January 1 article in the Seattle Post-Intelligencer. Some commentators have complained that the guidelines will discourage doctors from treating pain and complain that the guidelines were instituted primarily to save money, not to prevent diversion.
  8. The New York Times January 8 issue included an article regarding the use of a spinal cord stimulator as an alternative to pharmaceutical intervention to fight chronic pain. The article notes that, although the device does offer pain relief, some patients cannot adjust to the low-grade buzzing sensation it creates.
  9. A study, published in the February issue of Journal of Pain and Symptom Management, found that a nitrous oxide-oxygen mixture was more efficacious than morphine for analgesia in elderly patients with bedsores and ulcers.
  10. Dr. Christopher Paca, concerned about the lack of treatment facilities and doctors who can adequately care for chronic pain patients in southern Arizona, has founded the Pain Society of Southern Arizona. His goal is to bring together practitioners and public health educators to develop a strategy that will make more doctors available to chronic pain patients.
  11. The Davey Awards, an honor given to small firms or individuals for creativity, has given its gold award to an educational DVD titled “Breaking the Pain Cycle.” The educational program has three parts: a presentation on the assessment and management of breakthrough pain, novel approaches to breakthrough pain, and living and functioning with effectively managed pain.

Prescription Drug Diversion

  1. A local television station reported that robberies of pharmacies had increased in Gaston County, North Carolina. One pharmacist attributed the increase to North Carolina’s prescription monitoring program which is making it more difficult for those addicted to get narcotics through prescriptions.
  2. Another article appeared on a West Virginia newspaper site noting that the number one killer of young adults in the state is death by drug overdose. Most of those overdoses are on prescription drugs, not illegal drugs. The article states, however, that, with the increasing difficulty of obtaining prescription drugs, more young people are turning to injecting heroin.
  3. The January 13 issue of the Washington Post highlights the rate of painkiller abuse, particularly among coal miners, in western Virginia. The article quotes a police officer in the area as stating that the abuse and misuse of painkillers is the worse he has seen it 16 years. Particularly troubling is that the deadliest drug is methadone which is used to treat addicted patients.
  4. The Milwaukee Journal Sentinel published an article regarding doctors and substance abuse. The article questions whether the medical board treats is striking the right balance between rehabilitation with deterrence and patient safety when dealing with doctors who have addictions. In a related article, several authorities made suggestions as to how patients might be better protected and an editorial advocated giving the medical board more resources so that it can more effectively accomplish its mission.
  5. Nova Scotia’s prescription drug monitoring program has reduced the amount of oxycodone being prescribed in Cape Breton by 53%. According to a regional police spokesman, it has also led to a marked improvement in the crime rate because of the reduction in the amount of the narcotic being diverted to street sales.
  6. An article about the federal indictment of Dr. Phillip Eatough of Keensburg, New Jersey, for illegally prescribing painkillers and with money laundering asks the question, “Is Doctor a Healer or Drug Dealer?”
  7. Neurosurgeon David M. Baron was recently sentenced in Florida on federal felony charges of illegally prescribing scheduled drugs over the Internet. He received 25 months’ imprisonment, followed by 3 years of supervised release.

Other Items of Interest

  1. An article in Nurse.com notes the rise of organ donation after cardiac death (DCD). With the increase of such donations, fears have arisen that practitioners will begin to view terminally ill or injured patients as organ reservoirs, shortchanging the standard of care or even hastening death. The most recent issue of the NAAGazette includes an article concerning the possibility that some states’ organ donation laws creates an ethical dilemma for doctors who are treating patients with both organ donation cards and expressed end-of-life wishes.
  2. Five counties in California ― Santa Cruz, Santa Clara , Monterey, Alameda, and San Diego — have been chosen to participate in a pediatric palliative care pilot project for three years. California requested and received a waiver of the normal hospice eligibility requirements when the patient is a child. Under the pilot program, children may be admitted to hospice but still receive medical curative care.
  3. The sad death of 17-year old leukemia patient Nataline Sarkisyan in December, ostensibly because an insurer refused (until it was too late) to approve a liver transplant which doctors claimed would have allowed her to live six more months, has prompted media and blog discussions concerning end-of-life treatment. In “Bad Cases Make Bad Law,” Maggie Mahar of the Century Foundation, lays out the facts behind the headlines.
  4. In Pennsylvania, the Secretary of the Department of Public Welfare, Estelle B. Richman, is creating and convening a Pediatric Palliative and Hospice Care Task Force to examine issues surrounding supporting care for children with life-limiting diagnoses.
  5. The January 15 issue of Annals of Internal Medicine features a literature review geared to developing guidelines to improve palliative care at the end of life. The article includes five recommendations to those providing end-of-life care: assessment for pain, dyspnea, and depression; use of therapies to manage depression; ensuring that advance care planning is accomplished; use of therapies proven effective to manage pain; and use of therapies proven effective to manage dyspnea. Some aspects of end-of-life care, such as nutritional support, complementary and alternative therapies, and spiritual care, were not studied.
  6. The January 28 issue of Annals of Internal Medicine reports the result of a study regarding whether there are racial differences in folks who choose to leave hospice to pursue aggressive care. The authors found that African American patients were more likely than white patients to revoke hospice to pursue life-prolonging therapies. The study concluded that models of health care that couple curative and palliative therapies may be more attractive to African American patients.
  7. The January 15 issue of the Washington Post reported the findings of researchers at Brown University regarding the higher rate of hospitalization among black nursing home residents compared with white residents. The findings will be published in the June issue of Health Services Research. The study found that, in 2000 in Maryland, 23 percent of black nursing home residents were hospitalized compared with 18 percent of white residents. In Virginia, the rate of hospitalization was 20 percent versus 18 percent. The study indicated that the poorest nursing home residents were the most likely to be hospitalized.
  8. Oregon has announced that it is building an electronic registry of POLST (physician order for life sustaining treatment) orders. It will be available in 2009, but registration will be voluntary. It is hoped that the electronic registry will make it easier for paramedics to access a POLST during a medical emergency. A grant from the Greenwall Foundation and private donations will cover the cost of the registry.
  9. Psychological Science’s November issue published the results of experiments carried out to study human emotions when facing the death of oneself or of a loved one. The researchers found that when there are thoughts of death, the brain instinctively moves toward happier notions and images. The researchers opined that, as humans developed an awareness of death, they also evolved a “psychological immune system.”
  10. The January 27th issue of the Washington Post published a series of editorials concerning aging and the American elderly. “The New Alone” focused on issues concerning the divorce of an adult’s parents and facing the possibility of having to care for a step-parent that one barely knows when he or she reaches the end of life. “A Hidden Crime” deals with elder abuse and questions why, as a society, we have not put more resources into preventing this crime and prosecuting the perpetrators.
  11. The Veterans Administration (VA) issued a press release that noted the increase in hospice care being provided for veterans. The number of veterans treated in inpatient hospice beds increased by 21 percent in 2007. In addition, the average daily number of veterans receiving hospice care in their homes, paid for by the VA, increased by 30 percent. The February issue of the Journal of Pain and Symptom Management reported the results of a study funded by the VA regarding end-of-life care for veterans. The study authors concluded that VA efforts to evaluate end-of-life care for veterans should not only measure common aspects of care (e.g., pain management), but also examine performance in areas that are more specific to the veteran population.
  12. An article in the Boston Globe reported that several of the medical schools in the northeast were putting more emphasis on training students on taking care of senior citizens.
  13. Amednews.com February 4th issue (available on-line earlier) asked the question whether it is ethical to conduct clinical trials with patients in a hospice environment. The authors argue that well-designed hospice-based trials can protect research participants and that there is a need for data-driven care for hospice residents.
  14. The journal Patient Education and Counseling published the results of a study regarding attitudes towards truth-telling of both terminal patients and their professional caregivers.
  15. The University of Alabama, Birmingham, hospital is one of the few in the Southeast to have an inpatient palliative care unit. The program incorporates music therapy as an integral part of its care. An article from AP News notes that there are about 250 music therapists across the country whose practice is devoted to end-of-life patients.
  16. The January 2008 issue of Preventing Chronic Disease has an article titled “Discussions by Elders and Adult Children About End-of-Life Preparation and Preferences.” The authors noted the barriers to discussion about end-of-life preferences that included fear of death, trust in others to make decisions, family dynamics, and uncertainty about preferences. Successful strategies included casually approaching the topic and writing down end-of-life preparation and preferences before a crisis.
  17. An Ohio company has developed a system whereby, in an emergency, a person’s medical history and dying wishes would be available through a fingerprint scan. To test the concept, the company is providing free wireless computers and fingerprint scanners to fire departments in three Ohio communities to test the system while recruiting residents in those communities to sign up for the service for a free trial.
  18. A recent article in the Journal of Clinical Oncology reports that findings of researchers regarding the relationship between advance health directives and death rates for cancer patients undergoing stem cell transplants. The study found that stem cell transplant patients who did not have advance care plans were 2.5 times more likely to die from their illnesses than those who planned ahead. However, Dr. Fausto Loberiza, who led the study, opined that there was no direct effect on patients’ success rates from the plans but, rather, the type of person who has developed a plan often has a lifestyle that contributes to better health.
  19. First it was Oscar, the nursing home cat, who seems to sense when a patient is near death. Jon Katz, in Slate, writes of his dog, Izzy, and of his ability to connect with nursing home patients in a way that humans do not.

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