July 2008

NEWS FROM ATTORNEYS GENERAL OFFICES

  1. In July, Florida Attorney General Bill McCollum announced several arrests involving abuse of nursing home and group home residents in four separate cases. Brenda McKnight, Paulette Noble, Martello Brown, and Robert Reed have been taken into custody and are charged with one or more counts of third-degree felony. In one case, the defendant was the fourth employee of a group home to be charged. General McCollum also announced the sentencing of a certified nursing assistant, Valerie Hartley, to one year in county jail on her “no contest” plea to charges that she abused a mentally and physically disabled resident of a Pensacola nursing home.
  2. Kentucky Attorney General Jack Conway announced that a felony indictment was returned against a Kentucky licensed practical nurse for knowingly neglecting an adult under his care at a nursing home in Louisville, Kentucky.
  3. New Mexico Attorney General Gary King has urged all New Mexicans to take time to see a 30-minute television documentary titled “High: A Story About Kids and Drugs.” The program, sponsored by the Arizona Attorney General’s Office, was locally produced. It is designed to show the truth about the dangers associated with drugs and young people including the abuse of various prescription and non-prescription drugs. More information about the program is available from the producer, Christopher Productions, by clicking on “recent projects” and then clicking on the icon number 9.
  4. Oklahoma Attorney General Drew Edmondson announced that a former admissions coordinator for a Bartlesville nursing home has been arrested after being charged with eight felony counts of financial exploitation by a caretaker. She is alleged to have cashed more than $7,600 in royalty checks that should have been deposited into a resident’s trust account. General Edmondson’s wife Linda, who is co-chair of the Attorney General’s Task Force to Improve End of Life Care, was interviewed recently regarding end-of-life care.
  5. Pennsylvania Attorney General Tom Corbett announced last month the arrest of a doctor for allegedly prescribing controlled medicines for his personal use. Dr. David Giradi allegedly wrote and filled prescriptions using the names of other people but then kept the drugs for his own use.
  6. Washington Attorney General Rob McKenna’s Office recently filed charges in two separate incidents involving vulnerable adults. In the first case, ten felony charges were filed against Melissa M. Katruska who is charged with submitting Medicaid claims in excess of service provided as well as physically neglecting the individual. She was providing in-home care for a wheelchair-bound family friend. In the second incident, five felony charges were filed against Alexandria Cook who was an administrative assistant responsible for patients’ trust funds at a skilled nursing facility. She is alleged to have embezzled more than $6,000.
  7. Wisconsin Attorney General J.B. Van Hollen announced the conviction of an individual for Felony Neglect of a Patient Likely to Cause Great Bodily Harm. Eileen Lee had been employed as a wound care nurse for a rehabilitation center. One of her patients entered the facility with three minor wounds that required monitoring. After the first month, Lee stopped assessing him and, a month later, the patient had developed over 11 wounds. The patient died several weeks later.

JUDICIAL DEVELOPMENTS

  1. The Massachusetts Supreme Court recently held that, in medical malpractice wrongful death cases, Massachusetts law permits recovery for a “loss of chance.” In Matsuyama v. Birnbaum, No. SCJ-09964 (July 23, 2008), the court held: “Where a physician’s negligence reduces or eliminates the patient’s prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damage.”
  2. In Estate of Maxey v. Darden, 124 Nev. Adv. Op. No. 43 (July 3, 2008), the Nevada Supreme Court clarified portions of Nevada’s Uniform Act on Rights of the Terminally Ill. It defined who is an “attending physician” under the act and held that “an attesting witness must have personal knowledge that the surrogate gave written consent to withholding or withdrawing the terminally ill patient’s life-sustaining treatment.” It also determined that an attending physician’s determination that a patient is terminally ill is subject to judicial review to determine if the doctor acts in accord with reasonable medical standards.

LEGISLATIVE/REGULATORY DEVELOPMENTS

  1. Connecticut Governor M. Jodi Rell has announced the launch of a new Inernet-based prescription monitoring system. This system will replace the fax and mail process system that had been in place.
  2. The Delaware House of Representatives recently passed a resolution supporting Randy Richardson in his attempt to maintain a feeding tube for his daughter, Lauren Richardson, who has been diagnosed as being in a Permanent Vegetative State. The resolution states: “Be it resolved . . . that it is against the public policy of this State and this State’s interest in life, health and safety for hydration and nutrition that is not harming a patient to e involuntarily removed from a non-terminal, apparently brain-incapacitated patient if doing so will cause the individual’s death.” Lauren Richardson suffered a brain injury after a heroine overdose in 2006.
  3. Legislation to set up a prescription drug monitoring program will be proposed in the 2009 Montana legislature. According to a recent newspaper article, the Department of Justice has invested $50,000 into coming up with a blueprint for the database.
  4. Legislative leaders in Nevada have responded to a series of articles in the Las Vegas Sun that discussed the use of painkillers by Nevada citizens. The article noted that, in 2006, Nevadans were first in the use per capita of hydrocodone. According to a July 8 issue of the Las Vegas Sun, Assemblywoman Sheila Leslie, chair of the legislative committee on health care, has announced that she intends to work with Nevada Attorney General Catherine Cortez Masto to draft legislation for the 2009 legislative session to address the issue.
  5. New York Governor David A. Paterson signed into law A10833/S07752. The new legislation makes permanent and statewide a program that was piloted in Monroe and Onondaga counties. Called Medical Orders for Life Sustaining Treatment (MOLST), the form, completed after talking to a doctor, provides information on the kind of care a person wants at the end of their life. The MOLST form is bright pink so it can be easily identified by paramedics and includes both information on resuscitation and intubation as well as preferences concerning medication, hospitalization, and other interventions.
  6. In March, Utah Governor Jon M. Huntsman Jr. signed S.B. 161 into law. The new legislation updates the state’s Advance Health Care Directive Act by making a number of changes. It replaces the physician order for life sustaining treatment form with a life with dignity order, establishing procedures and requirements relating to the order, and describes who may witness the making or revocation of an advance health care directive.

OTHER ITEMS OF INTEREST

  1. The Florida Broward County Sheriff’s office, in conjunction with the United Way of Broward County Commission on Substance Abuse, partnered with three pharmacy chains — CVS, Walgreens, and Wal-Mart — to hold a voluntary prescription drug return to sheriff’s deputies. The drugs were then processed as abandoned property. Dubbed “Operation Medicine Cabinet,” such a take-back program will be conducted on a regular basis in the future. The concept was championed by Sgt Lisa McElhaney of the Sheriff’s Office who has seen the devastating impact prescription drug abuse has had on the area’s teen-agers.
  2. The University of Wisconsin Pain & Policy Studies Group has issued its 2008 report, Achieving Balance in State Pain Policy: A Progress Report Card. Funded jointly by the American Cancer Society, the Lance Armstrong Foundation, and Susan G. Komen for the Cure, the report notes that states continue to make progress in adopting balanced policies regarding pain management. Oregon joined Kansas, Michigan, Virginia, and Wisconsin in receiving an “A” and seven states (Georgia, Main, Minnesota Oregon, Rhode Island, Utah, and Washington) had policy changes sufficient to improve their grades.
  3. Stuart Bloom, an oncologist, wrote a short piece for the Journal of Clinical Oncology, titled “In Defense of Futile Gestures.” The article notes the limits of prognostication in dealing with patients’ illnesses.
  4. A debate between family members and a public guardian in California regarding withdrawing food and hydration from Janet Rivera, 46, was resolved when the public guardian withdrew and allowed the appointment of a family member to make healthcare decisions for Ms. Rivera. The public guardian had asked a court to approve the withdrawal although there is no evidence that this would be the desire of Ms. Rivera.
  5. Although most ethicists would argue that fiscal policy and end-of-life care should not be related, they seem to be completely interwoven, along with issues concerning criminal justice, in a case out of California. Twenty-four-year-old Jackson Phaysaleum has been in a persistent vegetative state since a fellow inmate attacked the convicted murderer while he was incarcerated at Kern Valley State Prison in California. His care, at an outside nursing home, has cost the state more than $800,000 since December. That includes the cost of having two correctional facility officers with him at all times, a requirement of state law. Officials are looking into a compassionate release for Phaysaleum which would eliminate the more than $2,300 a day cost for the guards.

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