June 2008

News from Attorneys General Offices

  1. Arizona Attorney General Terry Goddard’s office issued a press release announcing the “Break the Silence” Rally, hosted by the Statewide Elder Abuse Coalition on June 13. The campaign asked Arizonans to sign a pledge to prevent and report elder abuse, part of the I WILL campaign. The I WILL challenge and pledge are available on the Attorney General’s website. The “Break the Silence” Rally was held in conjunction with International Elder Abuse Awareness Day. The National Center on Elder Abuse estimates that, each year, five million senior citizens are abused but only one in fourteen of these cases is reported to authorities.
  2. California Attorney General Edmund G. Brown announced a plan to enable doctors and pharmacies to check patients’ drug history through an Internet program. The state’s database is currently only available to those authorized via telephone or fax. The new CURES program will make the information immediately available to authorized entities via a secure online database.
  3. Kentucky Attorney General Jack Conway announced that nine individuals have been indicted in connection with a pattern of abusive behavior against adult residents of Community Presence, Inc., an adult-care facility. Investigators uncovered the abuse allegations as they were investigating a suspicious death of a resident at the facility.
  4. Minnesota Attorney General Lori Swanson announced the filing of criminal charges against Mayfair Home Health Services, a nursing care facility, and its owner on fraud and neglect of a vulnerable adult charges. A quadriplegic patient at the facility was severely burned while being showered. The facility neglected to call for emergency services until a nurse arrived approximately three hours later. The patient subsequently died. The defendants are also being charged with Medicaid fraud.
  5. Mississippi Attorney General Jim Hood announced that a former hospice doctor, Paul White, pled guilty to one felony count of cyberstalking and six counts of aiding and abetting the practice of medicine without a license. He allegedly allowed nurses to illegally prescribe and inject patients with extremely excessive amounts of medication. One patient received 67,000 dosage units of morphine per day.
  6. A Boston newspaper has reported that New Hampshire Attorney General Kelly Ayotte is advocating for a prescription drug monitoring database.
  7. New Jersey Attorney General Anne Milgram recently announced the indictment of an individual for allegedly stealing more than $9,000 from an elderly nursing home resident. The defendant, Mary Ellen Wright, held a power of attorney for a resident of a long-term care facility.
  8. New York Attorney General Andrew Cuomo applauded the passage of legislation to fight fraud in the home health care industry by creating a publicly accessible registry of all certified home health and personal care aides in the state. The legislation, the New York Certified Aide Registry and Employment Search Act, A. 11468, is expected to be signed into law by the Governor.
  9. Pennsylvania Attorney General Tom Corbett announced that his office has filed charges against seven assisted living employees who are accused of stealing prescription drugs from residents. Those charged include a nurse, an administrator, and five resident assistants employed by New Seasons Assisted Living.
  10. Vermont Attorney General William Sorrell announced that the state had reached a civil settlement with the Green Mountain Nursing Home, a licensed nursing facility in Colchester, Vermont. The home admitted to violating the state’s laws on the reporting of abuse, neglect, and exploitation of vulnerable adults and for failing to report an untimely death to the Office of the Chief Medical Examiner. As part of the settlement, the nursing home has agreed to conduct, plan, and attend a series of trainings on issues relating to resident-to-resident violence, identification and reporting of abuse, neglect and exploitation, and “Do Not Resuscitate” orders. This month, General Sorrell also announced that a licensed nursing assistant had been charged with diverting narcotics from a nursing home in Burlington and another licensed nursing assistant had pled guilty to diverting narcotics and abusing a vulnerable adult. In that case, Sonja White admitted that she removed patches containing Fentanyl from two elderly residents for her own use. She received a sentence of 19 to 48 months of incarceration.
  11. Wisconsin Attorney General J.B. Van Hollen announced that a former caregiver at a group home received three and a half years’ imprisonment for his acts that led to severe burns on a resident in his care. The caregiver, Bennie Morris Jr., pled guilty to charges that he bathed a resident in water that caused a resident to suffer second degree burns over the lower 30% of his body.

Judicial Developments

  1. Federal district court judge Wesley Brown denied Dr. Wilbur Hilst’s appeal of his 33-month prison sentence for illegally distributing prescription drugs through an Internet pharmacy. Dr. Hilst claimed that the government coerced his guilty plea by charging his wife, who suffers from cancer, along with him. Two other defendants were also indicted by the grand jury. In the plea agreement, prosecutors agreed to dismiss charges against Mrs. Hilst and dismiss three other drug-related counts against the doctor in return for his plea to one count of conspiracy. According to the indictment, Mrs. Hilst obtained the DEA registration for the pharmacy that was involved in the Internet scheme.
  2. On May 9, Mari Chamberlain’s heart temporarily stopped; she is now in a coma. Officials at the hospital believe that there is little or no hope for her recovery, so the hospital wants to place her in palliative care with no further active treatment. To force the doctor and the hospital to continue treatment, her husband Peter filed a lawsuit on May 16 (Chamberlain v. Kamali), asking that the court order Providence Hospital and Dr. Javid Kamali to continue treating her. Anchorage Superior Court Judge William Morse issued a temporary restraining order that was to have expired on May 30. Peter Chamberlain appealed the expiration of the order to the Alaska Supreme Court. The court has now issued its opinion in P.C. v. Dr. K., M.D. and Providence Alaska Medical Center, No. S-13123 (June 19, 2008). It dismissed Mr. Chamberlain’s appeal as moot, holding that the appropriate guardian is the state guardian and remanding the case to the superior court. It noted that, under Alaska law, surrogates such as Mari Chamberlain’s husband, may make healthcare decisions for a patient only if a guardian has not been appointed or is not reasonably available. The Office of Public Advocacy had been appointed several years ago as Mrs. Chamberlain’s guardian after she was injured in an accident but had determined it would not make end-of-life decisions. On remand, the public guardian must decide under section 13.26.150(e)(3) of the Alaska Statutes whether or not to oppose the cessation of lifesaving treatment.
  3. The Georgia Supreme Court has declined to hear an appeal in Medical Center, Inc. v. Hawkins, 288 Ga. App. 840 (2007) (see the February 2008 Update). The decision means that the Court of Appeals ruling stands ─ that, in Georgia, the statute of limitations for wrongful death tolls during the minority of a plaintiff. The Update in February erroneously reported that court’s holding was that the decision to end the life of a patient with no living will and no chance of regaining brain function belongs to families, not hospitals. That issue was not before the court and, thus, the court’s language regarding end-of-life decisions was dicta.
  4. A judge in West Palm Beach, Florida, has entered an injunction, agreed to by both parties, which will continue the treatment being given to stroke-victim Karen Weber. In March, Mrs. Weber’s husband filed a lawsuit asking that the court declare his wife incompetent and appoint him as guardian to handle her affairs, including the decision as to whether to continue her feeding tube. Mr. Weber contends that his wife would not want to be kept alive in a vegetative state. Mrs. Weber’s mother and other family members argue, however, that Mrs. Weber is responsive. A three-member examining committee, consisting of a neurologist and two psychologists, has been appointed to consider her competency.
  5. A lawsuit filed last October by then-Kentucky Attorney General Greg Stumbo on behalf of Pike County, Kentucky, and other Kentucky counties against the makers of OxyContin has been consolidated with patent-infringement cases now pending in the U.S. District Court for the Southern District of New York. A motion has been filed to remand it to the Kentucky State courts. Pike County is suing Purdue Pharma, alleging that it misled consumers and doctors regarding the appropriate uses, risks, and safety of OxyContin.
  6. The Pain Relief Network, a pain treatment advocacy group, filed a class action suit on June 25 in federal district court in the Eastern District of Washington to challenge the guidelines promulgated by the Washington State Department of Health in March 2007 regarding prescribing opioids for non-cancer chronic pain. (See the May 2007 issue of the Update.) The lawsuit is based on civil rights laws, the Americans with Disabilities Act and other federal and state laws and alleges that the guidelines violate both state and federal law. Merle Janes, MD et al. v. Peter J. Harris et al.

Legislative/Regulatory Developments

  1. Representative Tim Walz (D-MN) has introduced the Veterans Pain Care Act of 2008, H.R. 6122. It would require the Secretary of Veterans Affairs to develop and implement a comprehensive policy on the management of pain in veterans.
  2. The House Judiciary Committee held hearings on “Online Pharmacies and the Problem of Internet Drug Abuse.” S. 980, the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, would amend the Controlled Substances Act to prohibit the delivery, distribution, or dispensing of controlled substances over the Internet without a “valid” prescription. Telemedicine practitioners would be exempt from the requirement that at least one in-person medical evaluation of a patient is necessary in order for a “valid” prescription to be issued. One of the provisions would require that every online pharmacy comply with the requirements of state law regarding licensure of pharmacies.
  3. The Arizona legislature passed a bill, H.B. 2823, known as “Jesse’s Law,” which establishes a court process to obtain an emergency order to prevent a surrogate decisionmaker from withdrawing the administration of food or fluid from an incapacitated patient. The bill is named after Jesse Ramirez who was seriously injured in an automobile accident in May 2007. Ten days after the accident, food, water and antibiotics were withdrawn and he was transferred to a hospice. Attorneys from the Alliance Defense Fund filed a lawsuit which prompted the restoration of treatment to the Gulf War veteran and his admission to a rehabilitation center. He was able to walk out of that facility in October 2007 and continues to recover at home.
  4. A committee of the California Senate has unanimously approved legislation, AB 3000, to adopt the Physicians’ Order for Life-Sustaining Treatment (POLST) form. It has been referred to the Senate Judiciary Committee.
  5. The Drug Enforcement Agency has proposed rules to allow e-prescribing of controlled substances. Published in 73 Fed. Reg. 36221–36782, the proposed regulations would require doctors to use two forms of identification for each transmission of e-prescriptions for controlled substances in addition to an annual audit of each system by a certified public accountancy. Doctors at federal health care facilities could use their federal identity cards to access prescribing systems and would not need additional identity proofing. Public comments may be submitted until September 25. The Michigan delegation to the American Medical Association’s (AMA) House of Delegates has proposed Resolution 512 that calls upon the AMA to support e-prescribing of controlled substances. A similar resolution, 506, was proposed by the California delegation.

Pain Management

  1. A California delegation-proposed resolution, Resolution 321, was adopted by the AMA’s House of Delegates. The resolution asks AMA to express its strong commitment to better access and delivery of quality pain care through the promotion of enhanced research, education, and clinical practice in the field of pain medicine.
  2. A monograph produced by the Pain Management Working Group of the Family Medicine Education Consortium and the Society of Teachers of Family Medicine on Pain Management and Palliative Medicine is available on-line. Representing the culmination of six years of curriculum development, it seeks to improve the skills of family physicians to address the needs of pain patients.
  3. Two articles published in the May/June issue of Pain Physician are highly critical of the guidelines produced by the American College of Occupational and Environmental Medicine regarding treatment of injured workers. The authors of the two articles, “A Critical Appraisal of the 2007 American College of Occupational and Environmental Medicine Practice Guidelines for Interventional Pain Management” and “Review of Occupational Medicine Practice Guidelines for Interventional Pain Management and Potential Implications,” argue that the recommendations did not appear to have been based on a “careful review of the literature, overall quality of evidence, standard of care, or expert consensus.” There seemed to be a lack of interventional experience by the reviewers and, thus, according to the authors, inappropriate conclusions were reached. The fear is that use of these guidelines might severely hinder access to appropriate and essential medical care, increase costs for injured workers, and lead to disabilities that will prevent patients from returning to work.
  4. An article by Dr. Forest Tennant, posted on Pain Treatment Topics, discusses the objective signs of severe pain that physicians should look for in guiding opioid prescribing. Dr. Tennant notes that severe, uncontrolled pain usually produces more objective physical evidence of its presence than does the average case of diabetes or coronary artery disease. He emphasizes that practitioners need to use these objective measures to separate relief-seekers from drug-seekers.
  5. Other articles published on Pain Treatment Topics involve the new findings regarding the use of supplemental vitamin D to help resolve or alleviate chronic pain and fatigue syndromes.
  6. The June 2008 issue of the Journal of General Internal Medicine published an “Update in Pain Medicine,” a review of recent studies on pain medicine. The report concludes that, while various approaches and combinations of therapies to treat pain have advantages and disadvantages, researchers still do not know how to determine what is best for an individual patient. Two of the deficiencies noted are that none of the opioid research trials studied lasted longer than four months and there were insufficient trials of herbal remedies versus other analgesics.
  7. Boston’s WCVBTV ran a report on the new Waltham Pediatric Pain Rehabilitation Center, run by experts from Children’s Hospital, Boston.
  8. The Robert Wood Johnson Foundation published the University of Pittsburgh’s Medical Center’s approach to ensuring that patients who had received joint replacement surgery knew when their next dose of pain medication would be available. A simple “Pain Poster” was devised, indicating when the last dose was administered and when the next would be available. The poster informed patients, their family members, and providers of ancillary services, such as occupational and physical therapy, of the patient’s pain management regime and resulted in an eight percent increase in patient satisfaction.
  9. A trial is underway, funded through a grant from the National Institute of Nursing Research, to study whether people with mild cognitive impairment and osteoarthritis, can find pain relief through the practice of Tai Chi.

Prescription Drug Diversion

  1. A Maine newspaper, the Village Soup, published an article noting that, of the 154 people who died in the state in 2007 from drug overdoses, 86 percent of those deaths involved prescription drugs. Unfortunately, the state-run Prescription Monitoring Program that was set up four years ago is only being used by 28 percent of eligible providers.
  2. Florida newspapers this month published and commented on a study released by the Florida Medical Examiners Commission that showed that prescription drug deaths are three times that of deaths caused by illegal drugs. However, an article in Slate comments that the reporting on these deaths is misleading. The cause of death in most of these cases, according to that article, is the ingestion of multiple prescription drugs, not of one single drug.
  3. The Tennessee Bureau of Investigation has launched the Tennessee Drug Diversion Task Force. The task force will provide support and training for law enforcement officials across Tennessee. According to the press release, prescription drug diversion is emerging as the largest problem Tennessee law enforcement is now facing.
  4. An article in an Indiana newspaper, the Times-Mail, notes that several area high schools are trying to combat the problem of prescription drug abuse by conducting random drug testing. This article was one of a series of articles that the newspaper published on prescription drug abuse.
  5. CNN ran a report on June 27 regarding Internet pharmacies and prescription drug diversion.
  6. The Annals of Internal Medicine’s June 3 issue published an interesting article regarding the relationship between a doctor’s performance during internal medicine residency training and subsequent disciplinary action by state licensing boards. Although the article does not specifically address board actions against doctors involving their prescribing of controlled substances, the finding that a low professionalism rating on the
  7. Resident’s Annual Evaluation Summary predicted increased risk for disciplinary action by state boards may be an impetus for further, more focused, research.
  8. Dr. Jonathan Dee, a board-certified family practice doctor in Tennessee publishes a blog that recently included an article on prescription drug abuse in Tennessee. He posits three major causes: many physicians over-prescribe narcotics; patients lie to and manipulate physicians; and Tenncare provided too much free prescription coverage. Tenncare is not limiting enrollees to five prescriptions per month, is requiring physicians to complete a continuing medical education program that addresses guidelines for appropriate prescribing habits, and has created an online database that physicians can access at the point of care. He also suggests that physicians familiarize themselves with prescribing guidelines, set firm boundaries with patients, test patients on chronic narcotic medications, and utilize the online prescription monitoring database.
  9. The arrest of a group of people in Alabama accused of running a prescription drug ring illegally obtaining and selling Lortab has raised concern among state officials. According to press reports, the group would call local pharmacies posing as nurses and were able to obtain local doctors’ DEA numbers by clicking the mouse.
  10. A New Jersey neurologist has been arrested and charged with dispensing controlled substances without a legitimate medical purpose and outside the usual course of professional practice. The allegations include that Dr. Pravin Vasoya of Mount Laurel Township prescribed oxycodone to individuals without performing any examination to determine a need for the medication.

Other News of Interest

  1. The Oregon Health & Science University’s website contains information regarding which states have programs for Physician Orders for Life-Sustaining Treatment (POLST). Researchers published an article in the March 2008 Journal of Law, Medicine & Ethics that reviewed state legal barriers to using POLST orders. The POLST paradigm converts patients’ treatment preferences into medical orders transferable throughout the health care system.
  2. The July 1 issue of the Annals of Internal Medicine has an article that discusses surrogate decision making and notes that the paradigm does not work as it is generally thought and that many patients don’t want it to work that way. The article notes that many patients which their decision makers to respond dynamically to clinical situations, “to maximize their evolving, contemporaneous interests and to make judgments that integrate both medical and nonmedical considerations.”
  3. There were a number of end-of-life papers presented at the annual meeting of the American Society of Clinical Oncology. These included a presentation of research that found that only one-third of terminally ill cancer patients reported that their doctors had discussed end-of-life care with them and that the patients who had had such discussions with their doctors were no more depressed than the two-thirds who had not and were more likely to spend their final days outside the hospital. The June 13 issue of the Houston Chronicle devoted a story to this presentation. Another study compared the medical costs of the final weeks of cancer patients’ life between those whose doctors had engaged in end-of-life discussions and those whose doctors had not.
  4. An op-ed in the Texas Star Telegram asked the question “Who will provide care as the end of life nears?” The editorial pointed out that long-term care has few champions. A recent issue of the New England Journal of Medicine published a comment by David Stevenson, a Harvard Medical School professor, noting that healthcare was mentioned more than 1,000 times during the 35 Democratic and Republican debates during the primaries, but nothing was said about long-term care even though it comprises about ten percent of healthcare spending.
  5. Paediatrics & Child Health, the journal of the Canadian Paediatric Society, published a commentary, “The Decision to Accept Disability,” written by the mother of a disabled infant, Annie. Her daughter died at 80 days from pulmonary complications due to genetic defects. In the article, the author comments on her daughter’s short life, the profound and benefic effect Annie’s life had on her family, and the grief at losing her, which was immeasurably augmented because the family had not had the chance to be with her at the time of death. When Annie was hospitalized, the doctors had placed a DNR order without consulting the parents.
  6. The Wall Street Journal published an article by Dr. Joseph Brewer advocating that doctors take the time to sit down and listen to their dying patients and noting that he has learned a great deal from these patients. In the newspaper’s HealthBlog, readers lauded Dr. Brewer’s approach. Some shared that experiencing the death of a loved one was made even more difficult by the lack of a human touch among the treating professionals.
  7. A survey, conducted in March and April in New York, found that, while 90 percent of upstate New Yorkers said it is important to have someone close to them making medical decisions on their behalf if they were unable to communicate and make decisions, only 42 percent actually had appointed health care proxies. Eighty percent acknowledged the importance of a living will, but only 26 percent had completed one.
  8. Duke University researchers authored an article in the June 4 issue of JAMA that reported their research regarding heart failure patients’ estimation of their life expectancy. The average patient believed that he or she would live 40 percent longer than what accepted survival models predicted. The data showed that patients predicted their life expectancy without regard to the severity of their illness. The authors concluded that doctors need to revisit end of life issues several times to ensure important messages are understood.
  9. Dr. Richard Payne, director of Duke University Medical Center’s Institute on Care at the End of Life, will share with Dallas, Texas, health-care providers and African-American church leaders a program developed at Duke to promote better end-of-life care for African-Americans. APPEAL ─ A Progressive Palliative Care Educational Curriculum for the Care of African-Americans at Life’s End ─ is being co-sponsored by a coalition of Dallas hospitals, hospices, and other care providers. The Dallas training will include sessions on cultural and spiritual concerns, improving communication, and developing better strategies for patient-centered care. Research has shown that discrimination, cultural, and economic barriers, and lingering distrust of the health-care system mean that African-Americans access hospice care less often than do white Americans.
  10. Advance, a biweekly trade magazine for licensed practical nurses, carried an article that asked the question “Should physicians be present at the bedside when life support is withdrawn?”
  11. The ABA’s Bifocal, a publication for elder law attorneys, had an interesting article concerning what one can learn from a hospital ethics committee. The list is valuable for anyone dealing with end-of-life issues with a loved one.
  12. The June 9 issue of Amednews.com noted that medical educators are increasing the opportunities for students to train in geriatrics skills. Currently there are only 7,100 geriatricians in the country. By 2030, 36,000 geriatricians will be needed.
  13. The Update has previously reported the efforts of Canadian Samuel Golubchuk’s children to keep him on life support because of his religious beliefs. (See December 2007.) An article in the Winnipeg Sun captures another side of the issue ─ the toll on the nurses and doctors who are caring for Mr. Golubchuk. Several doctors resigned their privileges at the hospital because they feel that treating Mr. Golubchuk was unethical, immoral, and not medically reasonable. In the midst of the conflict regarding continuing his care, Mr. Golubchuk passed away on June 24.
  14. The “Clinicians’ Corner” in the June 11 issue of JAMA asked the question “When is Enough, Enough?” Focusing on the case of a 56-year-old-man who desired to survive his lung cancer at all costs, the article discusses the role of chemotherapy at the end of life.
  15. The February 2008 issue of the Update reported that the Manitoba, Canada, College of Physicians and Surgeons had issued a set of guidelines for doctors that stated the final decision as to whether to stop life support lies with the doctor. That view is now being challenged by other experts. At an end-of-life conference, Dr. Jocelyn Downie, the Canada Research Chair of Health Law and Policy, stated that there is no legal precedent in Canada that gives doctors the authority to remove a feeding tube or issue a DNR order against a patient’s wishes.
  16. At the AMA annual meeting, the association approved palliative sedation for the terminally ill patient.
  17. The online Wall Street Journal published an article noting that medical ethics teams are increasingly the arbiters of end-of-life health care decisions. It raises the issue of whether there should be national standards and certification requirements for members of these teams.
  18. The current issue of the Baylor Law Review includes an article arguing that the Texas medical futility law is unconstitutional.
  19. An article discussing hospice and the new Medicare rule concerning reimbursement for hospice care appeared in the Washington Post.
  20. NASA is grappling with bioethical end-of-life issues as it plans its 30-years-from-now Mars mission. Among the questions to be resolved is what to do if a critically ill astronaut is using up precious oxygen and endangering the lives of the rest of the crew and whether astronauts should be required to sign living wills with end-of-life instructions.

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