May 2008

News from Attorneys General Offices

  1. California Attorney General Edmund G. Brown Jr.announced the arrest this month of a 78-year old physician, Dr. Wesley Albert, on second degree murder charges. He is accused of writing large quantities of prescription drugs outside the realm of legitimate medical practice which led to a patient’s death last year. He will be prosecuted by the Riverside County District Attorney’s Office. The Los Angeles Times quoted General Brown as planning to support upgrading the state’s prescription monitoring program to allow health practitioners to check patients’ histories before prescribing controlled substances.
  2. Connecticut Attorney General Richard Blumenthal testified in May before the House Committee on Energy and Commerce’s Oversight and Investigations Subcommittee in favor of new laws that would regulate nursing homes. He proposed a federal-state partnership which would include a strike force to rapidly investigate nursing home corruption. General Blumenthal also urged the Connecticut General Assembly to add nursing regulation reform to the call of the upcoming special legislative session.
  3. Illinois Attorney General Lisa Madigan urged Illinois Governor Rod Blagojevich to sign into law H.B. 3508, the Resident’s Right to Know Act, which has passed both houses by unanimous vote. The act will require each licensed, long term care nursing facility to complete an annual report that includes information about the facility’s quality of care, services, and security issues related to the residents and the staff of the facility.
  4. Maine Attorney General Steve Rowe announced last month that two August residents were sentenced for stealing credit cards from a 97-year old resident of a nursing facility where they were employed. The couple spent over $9,000 in a two-month period using the purloined credit cards. The husband was sentenced to 4 years in prison with all but 12 months suspended and the wife was sentenced to 3 years with all but 3 months suspended.
  5. Kansas Attorney General Steve Six spoke at the 2008 Combating Elder Abuse & Financial Exploitation Summit, outlining plans to target elder abuse, including financial abuse. The Attorney General’s Office has been working with the Kansas Department of Social and Rehabilitation Services and the Kansas Bankers Association on guidelines for identifying and reporting financial abuse. His office is also planning a training class for law enforcement on the investigation of elder abuse and financial abuse.
  6. Maryland Attorney General Douglas F. Gansler announced that a former licensed practical nurse had pled guilty to intentionally neglecting a vulnerable adult who was in his care. He was sentenced to 11 months, all suspended. The patient involved died of asphyxia due to overfeeding.
  7. Massachusetts Attorney General Martha Coakley announced that a Marlborough woman has pled guilty to charges of identity fraud and health insurance fraud in connection with a scheme to illegally obtain painkillers and other medications. According to officials, Ellen Frangules obtained prescription stimulants and painkillers by passing fraudulent prescriptions in pharmacies in both Massachusetts and Connecticut. The prescriptions were written in her name, that of her ex-husband and children, in the name of a stranger and in the name of her former attorney, both of whose identities she stole. She was sentenced to two and one-half years with 30 days to serve and the remainder suspended for a period of 5 years. General Coakley also announced this month that a former certified nurse assistant pled guilty to removing pain control patches from a 66-year old nursing home resident and taking the medication from the patches. She was sentenced to one year with 30 days to serve and the balance suspended for 3 years.
  8. Missouri Attorney General Jay Nixon announced that a decision by the U.S. Court of Appeals for Veterans Claims held that the State of Missouri was entitled to reimbursement from the federal Department of Veterans Affairs for care provided in 2000 and 2001 at the Veterans’ Home in Warrensburg. The award of $906,000 will be used to enhance veterans’ care at the seven veterans’ homes operated by the state.
  9. New York Attorney General Andrew M. Cuomo announced that a nursing home company had been sentenced to pay a $15,000 fine and be prohibited from operating any health care facility after five health care workers were convicted for patient neglect. A hidden camera recorded some of the evidence presented at trial.
  10. Pennsylvania Attorney General Tom Corbett announced that charges have been filed against Dr. Juliet Asuzu and additional charges have been filed against her husband Carles Asuzu for prescription drug abuse. Officials estimate that during nearly a two-year period, the couple obtained a total of 45,910 Hydrocodone tablets. Dr. Asuzu is no longer in the United States. She left for Nigeria in 2007.
  11. Vermont Attorney General William H. Sorrell announced that a licensed registered nurse has been charged with a number of felonies and a misdemeanor relating to her allegedly removing Schedule II narcotics from starter packs dispensed to patients being discharged from a hospital’s emergency department.
  12. Washington Attorney General Rob McKenna awarded a $15,000 grant to Prescriptions for Life, a local nonprofit organization working to eliminate prescription drug abuse. The money was part of a settlement with Purdue Pharma and will help pay for a new educational video.

Judicial Developments

  1. In June of last year, the federal government filed a civil suit against Dr. Seth Paskon, seeking civil penalties, fines, and a permanent injunction limiting Dr. Paskon’s ability to prescribe controlled substances. This month, the court denied the motion by the United States for a partial summary judgment order to suspend Dr. Paskon’s DEA license. The court held that there were genuine disputes of material fact that must be decided by the jury at trial this summer. (United States v. Paskon, No. 4:07-CV-1161 (CEJ) (E.D. Mo. May 12, 2008).)
  2. Dr. Steven Schneider and his wife, under federal indictment for prescribing controlled substances outside the realm of accepted medical practice, have filed a motion to dismiss the indictment and to hold that the Controlled Substances Act is unconstitutional. (Defendants’ Joint Memorandum and Authorities in Support of Their Motion to Dismiss the Indictment as Unconstitutional, United States v. Schneider, No. 07-10234WEB (D. Kan. Filed May 16, 2008).
  3. The California Supreme Court is scheduled to take up a discrimination lawsuit (North Coast Women’s Care Medical Group v. Benitez, No. S142892) brought by a lesbian who was denied artificial insemination by the only gynecology office within her insurance company’s network. Commentators are speculating that a decision in favor of Ms. Benitez might require doctors and other medical practitioners to perform procedures that they find objectionable on moral and/or religious grounds, including during end of life scenarios.
  4. The family of Sabrina Martin has filed a lawsuit against Children’s Memorial Hermann Hospital in Houston, Texas, regarding their treatment of Sabrina after surgery for a sinus infection. Sabrina’s parents allege that, following the development of a brain abscess, the hospital refused to implement life-saving treatment, attempted to persuade friends and relatives to discourage Sabrina’s parents from insisting on any further medical treatment, and entered two separate do-not-resuscitate orders against her parents’ wishes. Sabrina was eventually transferred to another hospital and is being cared for at home. Although disabled, she now has a normal life expectancy.
  5. Emma France, 95, and her daughter, Delores Forste, have filed suit against the Jasper County, Missouri, public administrator and that office’s attorneys. It is alleged that France was involuntarily hospitalized last May after a court action that appointed the public administrator as her guardian. Her daughter was never notified of the action. The guardianship was evidently prompted because of France’s monetary losses in what the county described as “lottery scams.” Forste eventually took her mother to Colorado to visit grandchildren and then on to California because France did not want to return to Missouri. Forste was arrested and extradited for kidnapping, a charge on which the county has deferred prosecution.
  6. A judge in Alberta, Canada, has refused to overturn the decision of doctors to offer only palliative care to a 68-year old woman, identified only as I.H.V. The family of the patient, who suffers from lung cancer and multiple organ failure, had requested that more aggressive, life-preserving treatment be administered. Judge Adam Germain opined that judged should try to avoid imposing their own opinions on medical experts in health care disputes.

Legislative/Regulatory Developments

  1. Utah became the first state in the country to enact a new law that addresses the problem of resolving multi-state jurisdictional disputes over adult guardianships. Governor Jon Huntsman, Jr., signed S.B. 122 into law in February. The law adopts into state law the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act that contains specific guidelines to specify which court has jurisdiction to appoint a guardian or conservator for an incapacitated adult.
  2. The Alaska legislature has passed S.B. 196, legislation that creates a prescription drug database in Alaska. The bill awaits the governor’s signature. If signed into law, the act will empower the Alaska Board of Pharmacy to operate an electronic registry tracking certain controlled medications.
  3. The federal government has released a proposed rule, 73 Fed. Reg. 24,000 (May 1, 2008), that would impact hospice reimbursements. The rule proposes phasing out the annual adjustment that is applied to the hospice wage index over the next three fiscal years. In a press release, the National Hospice and Palliative Care Organization commented that the proposal would mean less care to patients and family caregivers during the end phase of life.

Pain Management

  1. An on-line art gallery expressing visually what chronic pain sufferers experience every day of their lives was begun by a 47-year old Sacramento, California, man who created art work in an attempt to demonstrate his own suffering to his doctor ─ something that mere words could not adequately express. The art work has appeared on the cover of the Journal of Pain & Palliative Care Pharmacotherapy.
  2. Research reported at the annual meeting of the American Pain Society demonstrated that less than 3 percent of chronic pain patients who were prescribed opioids and who had no history of prior drug abuse will show signs of drug abuse or dependence. Dr. Srinivasa Raja, professor of anesthesiology at Johns Hopkins University Medical School, also emphasized that, for most chronic pain patients, drugs are not the sole solution.
  3. The Journal of Pain and Symptom Management in April published the results of a study evaluating data from 551 residents of six nursing homes in North Carolina. The study concluded that nursing home residents with dementia appear less likely to receive pain medication than other residents. The researchers concluded that, in many cases, patients with dementia should be on scheduled doses of medication.
  4. Another article in the April issue of the Journal of Pain and Symptom Management reported the findings of a team of researchers at the University of Calgary regarding tetrodotoxin. Tetrodotoxin, a toxin found in several tetraodon pufferfish, appears to be helpful in the treatment of moderate to severe cancer pain.
  5. Dr. Daniel Carr, in an article posted on-line at RedOrbit.com, “When Bad Evidence Happens to Good Treatments,” argues that evidence based medicine (EBM) can create a situation where the oversimplification of group statistics becomes the basis of denying clinical care. This is occurring, he notes, in the denial of needed pain treatment to individuals.
  6. A webinar, to be held on June 11 by the Healthcare Intelligence Network, will focus on managing the chronic pain patient in a way that will both improve quality of life while reducing healthcare utilization.

Prescription Drug Diversion

  1. The McKesson Corporation, which distributes branded and generic drugs nationally, has agreed to settle allegations that it violated federal reporting provisions regarding sales of hydrocodone and phentermine. McKesson has agreed to pay $13,250,000 in civil penalties. McKesson has also entered into an administrative agreement with DEA to implement new polices and procedures to detect and prevent drug diversion beyond those currently required by federal regulation.
  2. “Medical Ethics: Patients’ needs Versus Maximizing Income” was the lead article in the May 16 issue of Medical Economics. One of the troubling observations in the article was a report from a family practitioner that he has noticed a trend toward over-prescription of opiates. When he has questioned the practice, doctors replied that pain medication addicts always pay their bills and keep follow-up appointments. .
  3. A West Virginia doctor, David Allara, pled guilty to one count of aiding and abetting another person in getting hydrocodone by fraud or deception. The Charleston eye doctor admitted that he wrote prescriptions for no medical purpose to several women in an effort to get information about a woman he was dating. Dr. Allara was recently treated for cocaine addiction. He is scheduled to be sentenced in July.
  4. Dr. Donald P. Auzine, a Gonzales, Louisiana, doctor who operated a smoking-cessation and weight-loss clinic, pled guilty this month to one count of unlawfully dispensing controlled substances. In the plea agreement, Auzine admitted to unlawfully prescribing Adderall, oxycodone and hydrocodone. In some cases, he pre-signed prescriptions that were filled in by a clinic employee and given to patients.
  5. In unrelated charges, two Eastside, Washington, doctors have pled guilty in federal court to misdemeanor drug possession. Dr. Lawrence Parris admitted diverting a Demerol variant for personal use. Dr. Lawrence Gogenola admitted possessing oxycodone. Officials allege he wrote prescriptions for a non-patient and then diverted the drug to his own use. Sentencing for both doctors is scheduled for August.
  6. Dr. Phillip Astin III, whose original indictment was reported in the July 2007 Update, has been indicted by a federal grand jury on additional charges that add 150 counts relating to 17 additional patients. Astin is the doctor who authorities say prescribed drugs to wrestler Chris Benoit.
  7. Dr. Masoud Barndad, a San Fernando, California, has been indicted on federal charges for allegedly writing prescriptions for oxycodone for people he did not examine. He was allegedly being paid as much as $300 for each prescription.
  8. Two physicians, a pharmacist, and an office manager in Biloxi, Mississippi, have been indicted for writing and filling illegal prescriptions for pain medications and other narcotics. Dr. Victoria Van, her husband Dr. Thomas Trieu, pharmacist Nick Tran, and Richard Trieu, who worked in his brother’s office, have pled not guilty. In connection with the indictment, authorities seized close to $10 million in assets.
  9. Purdue Pharma, the maker of OxyContin, announced that it had developed a new form of the pill that the company claims will be harder to crush into a powder. However, a panel of advisors to FDA found that the new product would only give a false sense of security and that the company failed to show that the new polymer-coated tablets would truly cut down on abuse.
  10. Another article regarding the ease of purchasing controlled substances on Internet sites appeared on CNN.com. The article relates a widow telling of her husband’s dying from overdosing on pills ordered from the Internet.

Other News of Interest

  1. The University of Wisconsin’s Pain and Policy Studies Group has launched a new on-line course, “Increasing Patient Access to Pain Medicines around the World: Improving National Policies that Govern Drug Distribution.” It is a self-paced course, provided at no cost, involving 7 lessons, each with required readings. It is designed for an international audience of health care professionals, local and national policy makers, palliative care advocates, government drug regulatory personnel, national health policy advisors, and health policy scholars.
  2. A study published in The Lancet, co-authored by Princeton University economist Alan Krueger and by Stony Brook University’s Arthur A. Stone, found that Americans in households making less than $30,000 a year spend nearly 20 percent of their lives in moderate to severe pain, compared with les than 8 percent of people in households earning above $100,000. High school drop outs were susceptible to twice the amount of pain as college graduates.
  3. A number of media outlets re-published the New York Times article focused on “slow medicine” for the elderly. This approach encourages less aggressive (and less costly) care at the end of life. A companion article, titled “How Clear Are Your Last Wishes?” demonstrated that statements in living wills often become ambiguous when one is faced with real-life circumstances. The Los Angeles Times published its own article regarding “slow medicine.”
  4. The May 14 issue of the Journal of the American Medical Association (available by subscription only) discusses the case of the request by the father and other relatives that doctors administer an unverified traditional medical substance to his 19-year-old daughter who had been declared dead following repeat negative apnea tests. The article examines when it is appropriate to accommodate requests for interventions on patients who have been declared dead.
  5. The May issue of the Journal of Clinical Nursing includes an article that details an urgent need to improve end-of-life care for older people in the final stages of dementia.
  6. A new study, co-authored by University of California, Irvine, professors Peter Ditto and Elizabeth Loftus, show that living wills may not be as effective in honoring a person’s final wishes as much as previously thought. Their research indicated that people’s wishes change over their life; they suggest that thought should be given to allowing living wills to expire so that folks would have to re-think what their wishes are at various stages of their life.
  7. The Journal of Medical Ethics published an article titled “The Potential Impact of Decision Role and Patient Age on End-of-Life Treatment Decision Making.” The article concluded that patient age seems to influence medical decisions made for others, but not those that we make for ourselves.
  8. An article in the May 9th issue of the Baltimore Sun notes that living wills will not only save your family unnecessary heartache at the end of your life but will potentially save your heirs and society tens of thousands of dollars. It notes that Maryland is one of the most expensive places in the country to become terminally ill but that only 34 percent of Marylanders have living wills.
  9. Two national child advocacy groups have advocated for greater transparency in child abuse cases involving fatal or life-threatening situations. First Star and the University of San Diego’s School of Law’s Children’s Advocacy Institute released a report, grading from “A” to “F,” each state’s death and near death disclosure laws and policies.
  10. The January 2008 issue of the ED Legal Letter (available by subscription only) published a special report titled “Between a Rock and a Hard Place: When Parents Refuse Treatment for Their Children in the ED.” The article explores the competing legal principles involved when emergency room physicians’ duties in regard to appropriate medical care are overridden by parents refusing such care. The article also provides guidance to physicians involved in these cases.
  11. A draft report is being prepared for the Indiana Judicial Conference’s consideration as to how an aging population will affect the state’s courts. Two key issues are guardianships and general probate issues. Information regarding the report was published in The Indiana Lawyer in February. Access to the article requires a subscription.
  12. Dr. J. Daryl Thornton of the Center for Reducing Health Disparities presented the results of research at the American Thoracic Society’s International Conference in Toronto, Canada, this month. After analyzing interviews with more than 1,200 ICU physicians at five major medical centers, the researchers found that ICU doctors were less than half as likely to report feeling comfortable discussing prognosis and end-of-life issues with their black patients as with their white patients.
  13. The Salford, United Kingdom, town council is distributing 10,000 cards to the general public, to be made available in pubs, banks, libraries, and doctors’ offices, that instruct doctors not to treat the holder of the card if he has lost the capacity to make decisions because of an accident of illness. Some advocates are concerned that the cards, coupled with the U.K.’s Mental Capacity Act, may be used to place vulnerable people at risk of premature death. The Mental Capacity Act provides the legal framework in which the patient’s “best interests” may be interpreted as the need to refuse treatment or withdraw food and hydration.
  14. A recently published issue of the Cornell Journal of Law and Public Policy carried an article contending that New York’s Medicaid program should lessen is spending on terminal patient life sustenance and other acute illness care and focus, instead, on preventive care. (Joseph Fastiggi, New York Medicaid: Never Can Say Goodbye, 16 Cornell J.L. & Pub. Pol’y 581 (2007).)

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