Holland & Hart Healthcare Law Blog

OKLAHOMA FEDERAL JUDGE AUTHORIZES SUBSTITUTE USE OF NEMBUTOL TO AID IN EXECUTIONS.

 

There has been a shortage of thiopetal sodium recently, the anesthetic of choice in executions by lethal injections, which has temporarily halted executions in a number of jurisdictions that unlike, Texas,  have not stocked up on the drug. The manufacturer of the drug Hospira, Inc. of Illinois has indicated that it has had manufacturing issues with the drug and replacement supplies would not be available until early 2011.  Hospira, which markets its drugs, under the tag line of “Advancing Wellness” has indicated that it does not favor the “off-label” use of its drug in state sponsored executions. Death penalty opponents have been objecting to the substitution of other drugs because of the potential for pain and suffering by the prisoner in potential violation of the Eighth Amendment prohibition against cruel and unusual punishment.

 

PHYSICIAN FINGERED IN INSIDER TRADING FRAUD

 

Police arrested Dr. Yves M. Benhamou,  a French physician,  in Boston recently, charging him with leaking information to Front Point Partners a hedge fund owned by the investment bank, Morgan Stanley.  Benhamou, one of five physician overseeing a clinical trial of the drug Allbuferon developed by Human Genome Sciences, Inc. for the treatment of Hepatitis C. He  is alleged to have tipped off Front Point that there were problems involving the death of several patients in the trial.  Dr. Benhamou was apparently on retainer as a medical consultant to the hedge fund, while he was overseeing the clinical trials. Its kind of like having your mother on the jury. Chris Skowron, a doctor employed by Front Point to oversee its health care investments, is on administrative leave.

 

ARMENIAN GANGSTERS RIP MEDICARE FOR $35 MILLION DOLLARS PLUS.

 

 

Is this a great country or what?  Newly arrived immigrant gangsters from Armenia have helped themselves to the largess of Medicare to the tune of $35 million dollars and more by creating a loose network of false health clinics, staffed by real physicians and patients whose identities had been stolen.  The gang operated 118 of the non-clinics in 25 states.  In matching the stolen identities of physicians with the stolen identities of patients the thieves were able to bilk the federal government of millions by submitting false claims that were paid without pre-verification, which is the way Medicare works.

 

EMPLOYER NOT LIABLE FOR SEXUAL ASSAULT BY PHYSICIAN WHERE MISCONDUCT NOT FORESEEABLE.

    A hospital or medical group employing physicians are not generally liable for the wrongful acts of their employees committed outside the scope of their employment. What about sexual assault committed in the course of a medical examination? The answer is that it depends. It depends on the employer’s knowledge of the 

MONOPOLY AND THE BIG BAT THEORY IN ANTITRUST LAW

It perhaps deserves repeating that it is not illegal to be a monopoly in this country. In the 2004 case of Verizon Communs., Inc. v. Law Offices of Curtis v. Trinko, LLP, 540 U.S. 398, 407 (2004), the United States Supreme Court reasserted the rule, 

The mere possession of monopoly power and the concomitant charging of monopoly prices is not only not unlawful;  an important element of the free-market system. The opportunity to charge monopoly prices - -at least for a short period-- is what attracts “business acumen” in the first place; it induces risk taking that produces innovation and economic growth. To safeguard the incentive to innovate the possession of monopoly power will not be found unless it is accompanied by an element of anticompetitive conduct.

In  a sense the achievement of a monopoly is the brass ring of business. It is the ultimate success of having whipped the competition and being the last man standing. Assuming that the monopoly is achieved by fair competition, innovation, superior products, business smarts or lucky accident there is nothing wrong with charging what the traffic will bear until such time as a competitive counterweight arrives in the market.

NEW MEXICO BODY PARTS CAPER.

It came up “heads” when an employee at a medical waste disposal facility called Stericycle in Kansas noticed a partially burned head and torso at disposal site.  Stericycle normally disposes of dead tissue, but this was more like raisins in the oatmeal and he quickly perceived something was wrong.  Further investigation led to the discovery of 6 additional roughly severed heads and a number of torsos in a truck outside of the facility. Shades of Alistair Cook! Cook you will remember as the genial host of Masterpiece Theater on PBS whose body was dismembered and proliferated by a gang of New Jersey body snatchers a couple of years ago.

HOSPITAL PRIVACY BREACH -- DELIVERY OF MEDICAL RECORDS TO GRAND JURY.

 In responding to government or grand jury subpoenas for medical records, analysis under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), may not be the end of the road. HIPAA specifically authorizes a hospital to release a patient’s medical records in response to a grand jury subpoena. 45 C.F.R. Sec. 164.512(f)(1)(ii)(B). Unlike most federal statutes that pre-empt conflicting state laws, HIPAA specifically permits more stringent state medical privacy laws to pre-empt HIPAA. In the recent case of Turk v. Brian Oiler, et al., in the U.S. District Court for the Northern District of Ohio, a U.S. District Judge held that Ohio’s physician-patient privilege did not permit delivery of medical records to a grand jury and thus preempted HIPAA and exposed the Cleveland Clinic to potential exposure for delivery of the mental health and substance abuse records of the plaintiff James Turk to a state grand jury. 

Transplant Follies: Live Liver Lie Leads To Surgeon Indictment

It is a felony to lie to a federal government official concerning an administrative matter or process within his or her jurisdiction. Dr. Richard R.Lopez, M.D., 54, the former head of the liver transplant program at St. Vincent’s Medical Center in Los Angeles, CA was the recipient of a grand jury indictment this month for lying about and falsifying records concerning a liver transplant to federal transplant officials.  The lie was essentially to deceive the identity of the actual recipient of the liver. 

MONTANA AFFIRMS RIGHT TO PHYSICIAN ASSISTED SUICIDE-THROUGH STATUTORY, NOT CONSTITUTIONAL, ANALYSIS.

In a decision filed on the last day of 2009, the Montana Supreme Court affirmed a lower court decision concerning the right of a dying patient to a physician assisted suicide though it based its decision on an analysis of Montana statutes and public policy rather than the state Constitutional analysis adopted by the trial court below. In Baker et al v. The State of Montana et al., 2009 MT 449 (MT, December 31, 2009), the court followed the maxim of Viscount Falkland that when it is not necessary to make a decision, it is necessary not to make a decision and side stepped addressing whether there exists a constitutional right to die with dignity in the State constitution as requested by the principal plaintiff, Robert Baxter. Mr. Baxter, a retired truck driver, suffered from lymphocytic leukemia with diffuse lymphadenopathy.  Mr. Baxter, now deceased, contended that the State Constitution gave him the right to choose the timing and circumstances of his impending death, rather than suffer the indignities that he perceived in palliative care and the imposition that a drawn out departure would have upon his family.  He wanted the right to obtain a prescription of life terminating drugs from his physician without fear that his physician would be prosecuted for violation of state law.

COLORADO MEDICAL POT LAW ALL SMOKE?

The good news for Colorado Medical Marijuana smokers is that the Colorado State Constitutional Amendment making possession of pot more medically qualified users and their “personal care providers” is Constitutional. The bad news is that it is still illegal to sell it. On October 29, 2009, in People v. Stacy Clendenen, 08CA064, a panel of the Colorado Court of Appeals affirmed the conviction of apparent pot entrepreneur, Stacy Clendenen, for cultivation of marijuana, possession with intent to distribute marijuana, possession of marijuana-eight ounces or more, and possession of drug paraphernalia, after rejecting her defense that she was a “primary care giver, “protected under the Constitution.