July 2007

News from Attorneys General Offices

  1. Florida Attorney General Bill McCollum announced that a High Springs couple was arrested for the second time after a continued investigation by the Medicare Fraud Control Unit discovered new evidence that led to additional criminal charges. The couple has each been charged with neglecting a disabled adult in their care and providing false information to law enforcement officials during a felony investigation. General McCollum also announced this month that a Jackson County nurse was arrested and charged with multiple criminal charges that include criminal neglect of an elderly or disabled adult and obtaining a controlled substance by deception.
  2. Kentucky Attorney General Greg Stumbo announced the arrest of three employees of New Foundations on charges that include Neglect by a Caretaker.
  3. Massachusetts Attorney General Martha Coakley?s Medicaid Fraud Control Division obtained a guilty conviction against a Cape Cod doctor, Michael Brown, in connection with charges that he violated the Controlled Substances Act and the Medicaid False Claims Act. He was sentenced to 2 to 3 years in state prison and five years? probation. Dr. Brown?s medical license was suspended in August 2005. He was indicted in April 2006.
  4. New Jersey Attorney General Anne Milgram and Criminal Justice Directory Gregory A. Paw announced that a Cumberland County social worker had pled guilty to stealing more than $70,000 from an elderly nursing home patient.
  5. New York Attorney General Andrew M. Cuomo announced the arrests of former operators of Welcome Home, an adult-care home, who allegedly used credit cards, bank accounts, and identities of their residents to purchase items for themselves. General Cuomo also announced the arrest of a nurse who allegedly stole narcotics from a nursing home and then falsified records to conceal her theft.
  6. Oregon Attorney General Hardy Myers recently announced the conviction of a registered nurse on four counts of first-degree theft involving diversion of prescription pain medication.
  7. Rhode Island Attorney General Patrick C. Lynch recently released a report that summarized the October 2006 end-of-life conference for faith-based leaders. The conference was sponsored by the Rhode Island State Council of Churches and the Attorney General?s Task Force to Improve End of Life Care. General Lynch also announced that the week of November 26-30 2007 has been proclaimed Advance Care Planning Awareness Week in Rhode Island.
  8. Tennessee Attorney General Robert E. Cooper, Jr., announced the arraignment of a national nursing home corporation, Life Care Centers of America, Inc., in connection with the 2004 death of an elderly patient in its care. The corporation has been charged with manslaughter, abuse and neglect, and making a Medicaid false claim.

Judicial Developments

  1. Rosa Navarro, the mother of a San Luis Obispo, California, man who died after an attempted organ donation last year, has filed a lawsuit claiming that she never gave hospital officials consent to take her son off life support. Navarro v. Roozrokh, M.D. et al., No. CV-070471 (Super. Ct. San Luis Obispo County June 30, 2007).
  2. Documents have been filed in a La Crosse County, Wisconsin, Circuit Court, asking for the judge to grant a daughter?s request that treatment be ended for her mother. The daughter has been appointed her mother?s guardian but, under Wisconsin law, a guardian can only authorize an end to lifesaving care if the patient is in a persistent vegetative state or has expressed wishes through a conversation or advance directive. In this case, the mother has violent dementia and has refused food and drink. She must be kept completely sedated in order to ensure she not pull out her feeding tube. The woman also has medical conditions such as diabetes, anemia, pneumonia, and respiratory failure.

Legislative Developments

  1. Representatives Lois Capp (D-CA) and Mike Royer (R-MI) have introduced the National Pain Care Policy Act of 2007, HR 2994. It has been referred to the House Committee on Energy and Commerce. The bill calls for pain care education and training and a public awareness campaign as well as authorizing an Institute of Medicine Conference on Pain Care and the Pain Consortium at the National Institutes of Health.
  2. The Senate Special Committee on Aging held a listening session to hear from experts and other stakeholders about a national proposal for long-term care employee criminal background checks legislation. The legislation is targeted for inclusion in the Elder Justice Act. Senator Herb Kohl (D-WI) introduced S. 1577, which is based on the Michigan Workforce Background Checks Program.
  3. Several witnesses testified before the House Judiciary Committee?s Subcommittee on Crime, Terrorism, and Homeland Security in July. Joseph Rannazzisi, the Deputy Administrator for DEA?s Office of Diversion Control testified regarding the DEA?s role in supporting cannabis research, upholding the decision in Ashcroft v. Raich, enforcing the Combat Methamphetamine Epidemic Act, and prosecuting the diversion of controlled substances. Siobhan Reynolds, President of the Pain Relief Network, spoke concerning how prosecution of doctors affects chronic pain patients. Other speakers included John Flannery, former special counsel to the U.S. Senate and U.S. House Judiciary Committees, and Martin Waugh, a California doctor arrested by local California officials for drug diversion.
  4. The Senate Judiciary Committee held a hearing on evaluating the propriety and adequacy of the OxyContin criminal settlement.
  5. Sec. 7002 of PL 110-28 requires that all prescriptions for Medicaid patients after October 1, 2007, be written on tamper-resistant prescription pads. The provision is part of a spending bill for Iraq.
  6. In May, the Georgia Governor Sonny Perdue signed HB24, which provides the form for a new advance directive for health care that includes a living will and a durable power of attorney for health care.
  7. Effective July 1, Idaho has combined its advance directives into one, the Physician Order for Scope of Treatment (POST) form. Under former laws, a patient who wished to limit life-sustaining care was often required to have multiple directives applicable to different settings. The new POST law is intended to simplify the situation by replacing the former directives with one standardized form that applies in all treatment settings. It also provides patients with more flexibility in expressing their wishes.
  8. New York Governor Eliot Spitzer is expected to sign A00827 that will require the New York Department of Health to conduct education and outreach to consumers and health care providers on the importance of completing an advance directive.
  9. North Carolina SB 1046 has been re-referred to the House Judiciary committee. The bill is aimed at simplifying the language in North Carolina?s medical and legal end-of-life forms.

Pain Management

  1. The Pain & Policy Studies Group at the University of Wisconsin has released the 2007 Pain and Policy Report Card and Evaluation Guide of state-level pain management policies across the country. The study, funded by a three-year grant from the American Cancer Society, the Lance Armstrong Foundation, and Susan G. Komen for the Cure, examines policies that govern pain management practices for cancer patients in all 50 states and the District of Columbia. The 2007 report card places Kansas and Wisconsin with Michigan and Virginia as having the most balanced pain policies in the nation. Other states showing the greatest improvement are Arizona, California, Colorado, Connecticut, Massachusetts, and New Hampshire.
  2. The Times-Herald, a newspaper covering the Vallejo area of California, featured an article focusing on the plight of millions of Americans who suffer from chronic pain.
  3. Health published an article discussing the fact that women physically experience pain differently from men, noting that researchers are now looking for and finding treatments formulated for women?s bodies.
  4. An article in the June 2007 issue of Practical Pain Management contains a review of the barriers to adequate pain management, a review of the literature, and tips to physicians on how they may strike a balance in their own practices when dealing with chronic pain patients.
  5. The July 12 issue of Nature included an article by researchers at the University of Manchester that may assist in the development of the next generation of painkillers for relief of chronic conditions. The pain molecule P2X receptor appears in a more primitive form in slime moulds. By studying the slime mould equivalent, researchers hope to find a way to inhibit the P2X molecule in humans.
  6. The July 5 issue of Neuron contains a study that provides a greater understanding of how pain interferes with concentration. According to the study, when pain kicks in, it triggers a region of the brain known as the lateral occipital complex, overriding a person?s ability to concentrate and accurately recognize images.
  7. A neonatologist in Great Britain was cleared of administrative charges that he caused the death of two terminally ill babies when he injected them with pancuronium, a muscle relaxant. Both infants were experiencing agonal gasping. After he was cleared by the General Medical Council, he called for a debate on end-of-life decisions regarding neonates.
  8. An article in the June 2007 Annals of Behavioral Medicine reported that pain acceptance is emerging as a promising complement to control-based pain management strategies and an approach to maintaining quality of life for chronic pain patients.
  9. Recently, the website Pain Treatment Topics posted several articles of interest. In one, titled ?Chronic Pain Conundrums in Primary-Care Practice,? Dr. Penelope Zeigler offers advice to primary care physicians treating chronic paint patients. Two other articles recently posted on the website are Dr. Lynn Webster?s ?Maximizing Safety with Methadone and Other Opioids? and Dr. Forest Tennant?s ?Overcoming Opiophobia and Doing Opioids Right.?
  10. The Western Journal of Nursing Research published an article concerning a study that explored attitudes and beliefs that affect decisions about prescribing and administering pain medications to long-term care residents.
  11. New York Times columnist John Tierney has weighed in on Dr. Hurwitz?s second conviction, decrying what he sees as a doctor?s criminal conviction based on the number of pills prescribed to pain patients.
  12. Canada has proposed new federal rules that would allow podiatrists, nurse practitioners, and midwives to prescribe opioids and other controlled substances. Although the proposal has gained wide-spread approval, some have cautioned that allowing additional professionals to prescribe the controlled substances will create more diversion of these medications.

Prescription Drug Diversion

  1. Dr. Porfirio Orta-Rosario, Oshkosh, Wisconsin, and Dr. Christopher Otko, Riverside, California, have been indicted along with two pharmacists, one from Mooresville, North Carolina, and the other from Lyndonville, Vermont, on drug distribution and money laundering charges. The charges, brought by the U.S. Attorney?s Office for the Western District of North Carolina, involve Schedule III and Schedule IV controlled substances.
  2. Dr. Phillipe C. Astin, III, of Carrollton Georgia, was recently indicted by a federal grand jury for illegal distribution of prescription drugs outside the usual scope of medical practice.
  3. Dr. William Hurwitz was sentenced to four years and nine months after he was found guilty on re-trial of violating the federal Controlled Substances Act. His original conviction was overturned by the Fourth Circuit Court of Appeals because of an erroneous jury instruction. He had originally been sentenced to twenty-five years of incarceration.
  4. This month, the Spartanburg Herald Journal (South Carolina) published two parts of a three-part series on issues surrounding prescription drug diversion. The first article speaks to the increase in deaths from methadone overdoses; the second article details the abuse of prescription drugs and the increase in addiction that leads people to abuses such as doctor shopping and forging prescriptions.

Other Items of Interest

  1. The potential for abuse in state guardianship proceedings regarding elderly Americans was the subject of a posting on an elder abuse blog.
  2. The Treuman Katz Center for Pediatric Bioethics hosted a two-day conference, ?Navigating Conflicts When Parents and Providers Disagree About Medical Care.? Over 250 attendees from diverse backgrounds and several countries gathered to discuss the difficult issues surrounding care of intensely ill children. A webcast of many of the sessions is available on the Center?s website.
  3. The New Hampshire Reclaiming the End of Life Initiative has completed its eight citizen forums and will be issuing a report summarizing the findings. The Initiative is focused on addressing the crisis that surrounds the way Americans are cared for during the last part of their lives by encouraging substantive discussion among our Nation?s leaders surrounding the issues of family caregivers and the care of the frail and the elderly. The Initiative?s informative website includes a short video and other resources.
  4. Simon Corbell, the Attorney General of the Australian Capital Territories (ACT), has released a discussion paper for public comment titled ?Consenting to Treatment: Developing an ACT Legislative Framework for Giving Consent to Providing, Withholding or Withdrawing Medical Treatment toan Incompetent Adult.? The right of family members to give consent to medical treatment for incompetent adults has not been clarified by statute in the ACT. The proposed guidelines would support feeding and hydrating incapacitated and comatose patients.
  5. Guidelines have been developed for Australian doctors on communicating prognosis and end-of-life issues with patients and their caregivers.
  6. The July 3 issue of the Washington Post contained an article titled ?A New Focus on Easing the Pain,? discussing the benefits of palliative care.
  7. The Clovis Unified School District has reversed its stance, as reported in the June Update, on whether students should be allowed to die at school if parents have requested they not be resuscitated. The school board unanimously approved a policy that honors requests for families who have DNR orders, signed by a doctor, on file with their children?s schools.
  8. The July 25 issue of the New England Journal of Medicine includes an article noting that hospice care is underused, meaning that patients end up dying in ICUs and emergency rooms instead of at home. According to the author, many patients avoid hospice because they and their doctors believe end-of-life care means they have ?failed? in the face of disease. A second article recounts the story of one patient who decided not to enter hospice care because she would have been forced to give up intravenous feeding and she wished to stay alive long enough to see her daughter get married.
  9. Dr. Henry Perkins wrote an article, published in the July 3 issue of Annals of Internal Medicine, titled ?Controlling Death: The False Promise of Advance Directives.? In it, he argues that unexpected problems often arise to defeat advance directives and advocates that advance care planning should emphasize not just the completion of documents, but the emotional preparation of patients and families for future crises. In the same issue, the results of a study were published that looked at the proportion of deaths in intensive care units that occur in patients who lack decision-making capacity and a surrogate and the process that physicians use to make decisions to withdraw life support.
  10. The Yale Journal of Humanities in Medicine included an essay by Dr. Howard Spiro, titled ?Spirituality and End-of-Life Care.? In it, Dr. Spiro notes that in discussing end-of-life care, one cannot ignore the spiritual aspect.
  11. A dissertation written by Helen Chapple, who recently graduated from the University of Virginia with a Ph.D. in anthropology, focused on end-of-life care in the United States. Titled, ?Dying to be Rescued: American Hospitals, Clinicians and Death,? the paper reports the results of interviews she had with clinicians, nurses, and doctors. She learned that, once it is clear that a patient can not be saved, an arguably lower standard of care emerges for dying patients, except for those undergoing palliative care.
  12. Robert Veatch, a Georgetown University medical ethics professor, has proposed that government should set a default definition of death but allow people to choose their own definition. In New Jersey, for instance, orthodox Jews may opt out of the whole brain definition of death and use cardio-respiratory definition of death because they traditionally see breath as the key to life. Japan uses the heart and lung criteria as the definition of death, but allows people to opt for whole brain death so that they can donate organs.
  13. Reuters.com carried an article titled ?When to Let Go? Medicine?s Top Dilemma.? The article notes how difficult it is to end futile treatment because it is difficult to achieve consensus on the definition of futility.
  14. The July 23, 2007, issue of Newsweek included an article titled ?Back from the Dead,? discussing new techniques doctors are using to treat sudden cardiac arrest. The article notes that the boundary between life and death has become ?increasingly uncertain, even porous.? Newsweek also had a web commentary, written by a hospital chaplain, detailing her experiences with death and dying.
  15. Dr. Amos Bailey, director of palliative care at Birmingham VA Medical Center, wrote an op-ed for the Birmingham News regarding the difficult decision a patient must make between continuing treatments and entering hospice care. Dr. Bailey points out that Medicare pays $3,000 a month for hospice care. With some treatments costing $4,000 to $6,000 a month, hospice cannot afford to deliver those treatments. Medicare will not pay for both treatments and hospice care.
  16. According to the results of a study that appeared in the February 1, 2007, issue of the New England Journal of Medicine, an intervention to improve communication between clinicians in the ICU and family members of a dying patient significantly reduces feelings of stress, anxiety, and depression in the family members.
  17. A desire for hastened death is uncommon among patients with metastatic cancer, despite considerable levels of pain and emotional distress, according to an article published in the June issue of the Journal of Pain and Symptom Management.
  18. Dr. Darshak Sanghavi wrote a moving article about her father?s death, the family?s decision to stop treatment, and the dilemma doctors face when attempting to ease death for their patients.
  19. Plans have been announced to launch a round-the-clock television channel in Germany in the fall that will be devoted exclusively to ageing, death, and dying. Eos TV will host televised obituaries, information about undertakers, and practical information for the elderly including nursing services and products to make living easier for the aging.

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