First Circuit rules that recovering addict entitled to Disability benefits

In Colby v. Union Security Insurance Company & Management Company for Merrimack Anesthesia Associates Long Term Disability Plan, et al., the First Circuit Court of Appeals created a circuit-split in ruling that a recovering addict can get LTD benefits.

The Court held that “a risk of relapse into substance dependence — like a risk of relapse into cardiac distress or a risk of relapse into orthopedic complications — can swell to so significant a level as to constitute a current disability.”

The opinion, written by Judge Bruce M. Selya, is available here.

SCOTUS, with Chief Justice Roberts, Upholds Health Care Law

With a vote of 5-4, the Supreme Court of the United States has upheld the Health Care Reform legislation with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.  Read the opinion here.

While Justice Anthony Kennedy was thought to be the swing vote, he ultimately dissented and Chief Justice John Roberts’ vote ultimately saved the historic legislation.

Here is a summary:

• Justices Kennedy, Scalia, Alito and Thomas voted that the entire Act was unconstitutional.
• Justices Ginsburg, Kagan, Sotomayor and Breyer voted to uphold the Act as constitutional.
• Chief Justice Roberts forged a middle ground stating that the Act was constitutional under Congress’ power to tax, but unconstitutional under the Commerce Clause.  However, the Act is ultimately constitutional because of the former.

Regarding the Medicaid issue, CJ Roberts notes that “[n]othing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.”

Having upheld the individual mandate, the Court does not reach severability issues.

The SCOTUSblog summarizes as follows:

The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

Play dealing with Marriage Equality and Medical Malpractice debuts at Trinity Rep

Love Alone, a timely play, debuts this week at Trinity Rep on March 16th and runs through May 27, 2012.  Check the play out on Facebook here.

The play deals head-on with marriage equality and medical malpractice by telling a fictional story of what happens when a routine procedure goes tragically wrong. In light of Rhode Island’s 2010 civil union bill and the current bill before the House to allow doctors to say “I’m sorry” for medical negligence, Love Alone couldn’t be more relevant.

Internationally awarded playwright Deborah Salem Smith is the author of Love Alone and the playwright-in-residence at Trinity Repertory Company in Providence. She has a personal connection to the subject matter in that her partner of 14 years is a doctor and her father-in-law is an attorney who represents patients and hospitals in medical malpractice lawsuits.

Love Alone was among 19 plays in the nation to be awarded a prestigious Edgerton Foundation New American Play Award and received an honorable mention from the Jane Chambers Award, the country’s premier women’s playwriting award. Recognized for its exploration of the complex human emotions experienced by those involved in medical error, Love Alone paints a loving portrait about how we grieve and how we heal.

Smith’s previous honors include an Emerging American Artist Fulbright for playwriting in Dublin, Ireland, where she worked with the Abbey Theatre, Ireland’s national theatre. Smith’s work has been recognized by a National Mellon Fellowship in the Humanities, a MacDowell Fellowship, a Colby Fellowship, a Major Hopwood Award, as well as writing and visual arts prizes from the University of Michigan and Princeton University. Her previous plays, which have been deemed “luminous, intelligent, provocative and deeply moving,” by The Boston Globe, include Boots on the Ground, Some Things Are Private, Good Business, and Caviar.

Conservative Federal Judge Deems Portion of Health Care Law Unconstitutional

After two federal judges had deemed the new Health Care law constitutional, a Virginia federal judge appointed by George W. Bush has deemed it’s “individual mandate” provision unconstitutional.  The New York Times has the story:

A federal judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first judge to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.

The judge, Henry E. Hudson of Federal District Court in Richmond, said the law’s requirement that most Americans obtain insurance exceeded the regulatory authority granted to Congress under the Commerce Clause.

(…)

In a 42-page opinion, Judge Hudson wrote: “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”

Allowing Congress to exert such authority, he said, “would invite unbridled exercise of federal police powers.”

Compelling vehicle owners to carry accident insurance, as states do, is considered a different matter because the Constitution gives the states broad police powers that have been interpreted to encompass that. Furthermore, there is no statutory requirement that people possess cars, only a requirement that they have insurance as a condition of doing so. By contrast, the plaintiffs in the health care case argue that the new law requires people to obtain health insurance simply because they exist.

The insurance mandate is central to the law’s mission of covering more than 30 million people who are uninsured. Insurers argue that only by requiring healthy people to have policies can they afford to pay for those with expensive conditions. But Judge Hudson ruled that many of the law’s other provisions could be severed legally and would survive even if the mandate is invalidated.

Judge Hudson is the third district court judge to reach a determination on the merits in one of the two dozen lawsuits challenging the health care law. The other judges, in Detroit and Lynchburg, Va., have upheld the law. Lawyers say the appellate process could last another two years before the Supreme Court settles the dispute.

The opinion by Judge Hudson, who has a long history in Republican politics in Northern Virginia, continued a partisan pattern in the health care cases. Thus far, judges appointed by Republican presidents have ruled consistently against the Obama administration, while Democratic appointees have found for it.

At least $1.5 Million awarded in Federal Vaccine Case

CBS News reports that the first court award in a vaccine-autism claim is a big one: the family of Hannah Poling will receive more than $1.5 million dollars for her life care; lost earnings; and pain and suffering for the first year alone.

In addition to the first year, the family will receive more than $500,000 per year to pay for Hannah’s care. Those familiar with the case believe the compensation could easily amount to $20 million over the child’s lifetime.

Hannah was described as normal, happy and precocious in her first 18 months.

Then, in July 2000, she was vaccinated against nine diseases in one doctor’s visit: measles, mumps, rubella, polio, varicella, diphtheria, pertussis, tetanus, and Haemophilus influenzae.

Afterward, her health declined rapidly. She developed high fevers, stopped eating, didn’t respond when spoken to, began showing signs of autism, and began having screaming fits. In 2002, Hannah’s parents filed an autism claim in federal vaccine court. Five years later, the government settled the case before trial and had it sealed. It’s taken more than two years for both sides to agree on how much Hannah will be compensated for her injuries.

Read Sharyl Attkisson’s 2008 report on Hannah Poling

In acknowledging Hannah’s injuries, the government said vaccines aggravated an unknown mitochondrial disorder Hannah had which didn’t “cause” her autism, but “resulted” in it. It’s unknown how many other children have similar undiagnosed mitochondrial disorder. All other autism “test cases” have been defeated at trial. Approximately 4,800 are awaiting disposition in federal vaccine court.

Time Magazine summed up the relevance of the Poling case in 2008: …(T)here’s no denying that the court’s decision to award damages to the Poling family puts a chink — a question mark — in what had been an unqualified defense of vaccine safety with regard to autism. If Hannah Poling had an underlying condition that made her vulnerable to being harmed by vaccines, it stands to reason that other children might also have such vulnerabilities.”

Then-director of the Centers for Disease Control Julie Gerberding (who is now President of Merck Vaccines) stated: “The government has made absolutely no statement indicating that vaccines are a cause of autism. This does not represent anything other than a very specific situation and a very sad situation as far as the family of the affected child.”

Read the newly-released decision on Hannah Poling’s compensation.

Study Says Medical Errors Cost Nearly $20 Billion Every Year

The Wall Street Journal “Health Blog” reported on a study released Monday by the Society of Actuaries which states that medical errors cost the US $19.5 billion in 2008.  The costs include both medical costs and those linked to lost productivity.  The Hill reports that the dollar figure cited is “likely low,” according to consultants at Milliman, “who crunched the data.” Jonathan Shreve, an actuary for Milliman who co-authored the report, said, “We used a conservative methodology and still found 1.5 million measureable medical errors occurred in 2008.”  More than “half of those costs were associated with just five avoidable medical injuries: pressure ulcers; post-op infections; mechanical troubles with devices, implants or grafts; post-laminectomy syndrome; and hemorrhages.”

Skilled Healthcare Group Class Action Yields Largest Verdict of 2010

American Lawyer notes that “On Tuesday, a California state court jury awarded $671 million in damages to a class of plaintiffs who alleged that Skilled Healthcare Group had inadequately staffed its nursing homes. According to data compiled by Bloomberg, this is the largest verdict of 2010.” Class counsel W. Timothy Needham of Janssen, Malloy, Needham, Morrison, Reinholtsen, Crowley & Griego said that “plaintiffs lawyers…first began to consider a class action against Skilled Healthcare after suing the company and its facilities in individual wrongful death cases and learning of widespread violations.”

U.S. Attorney Reclaims $275k in Medicare Payments from Dermatologist Ordering Unnecessary Tests

Hines Dermatology Associates, Inc., a Massachusetts based corporation with a practice and laboratory in Providence, R.I., is reimbursing $275,000 to the Medicare Program after the U.S. Department of Health and Human Services (HHS) and U.S Attorney’s Office in Rhode Island determined that unnecessary pathology services were being performed at the Rhode Island office and then billed to the federal government.

Dr. Yvonne C. Hines, M.D., president and medical director of Hines Dermatology Associates, Inc., and Dermatopath Lab, was also required to enter into an Integrity Agreement with HHS to ensure compliance with regulations, directives and programs associated with Medicare, Medicaid, and all other federal health care programs.

The civil settlement requiring the reimbursement of funds and implementation of an Integrity Agreement was announced by U.S. Attorney Peter F. Neronha and Susan Waddell, Special Agent in Charge of the regional office of the U.S. Department of Health and Human Services, Office of Inspector General.

Between mid February 2004 and early October 2007, through the practice, Dr. Hines and the lab falsely represented that some patient test results required additional and more expensive testing and thus were eligible for reimbursement by Medicare, when in fact, they were not necessary.

U.S. Attorney Peter F. Neronha commented, “Health care fraud victimizes nearly every American – whether covered by Medicare, Medicaid, or one of the many private insurers. It has rapidly become one of our most urgent, destructive and widespread national challenges; a crime for which we will have zero tolerance. Cases like this will be rooted out and those responsible will be held accountable.”

“Charging Medicare for unnecessary medical services is a crime and those that do so will be brought to justice,” said Special Agent in Charge Susan Waddell, of the Federal Department of Health and Human Services Office of Inspector General (HHS-OIG) Boston Region. “The HHS-OIG integrity agreement will monitor future activity to eliminate fraudulent billing for tests that were never needed.”

The case was handled by Assistant U.S. Attorney Dulce Donovan and John W. O’Brien, Senior Counsel, Office of the Inspector General (OIG), U.S. Department of Health and Human Services. The matter was investigated by Special Agent George E. Walford, III, OIG-HHS, Boston.

Wal-Mart Fighting $7K OSHA fine in Trampling Death

The New York Times reports that “Wal-Mart Stores has spent a year and more than a million dollars in legal fees battling a $7,000 fine that federal safety officials assessed after shoppers trampled a Wal-Mart employee to death at a store on Long Island on the day after Thanksgiving in 2008.” The company’s “all-out battle against the relatively minor penalty has mystified and even angered some federal officials,” but Wal-Mart “says that regulators are trying to enforce a vague standard of protection when there was no previous OSHA or retail industry guidance on how to prevent what it views as an ‘unforeseeable incident.’” Wal-Mart spokesman David Tovar said, “The citation has far-reaching implications for the retail industry that could subject retailers to unfairly harsh penalties and restrictions on future sales promotions.”

Report: Medical Error Leads to Congressman Murtha’s Death

While various news outlets have described the death of Congressman John Murtha’s (D-PA) as resulting from “complications following gallbladder surgery,” the Pittsburgh Post-Gazette is reporting that the “complications” involved an error by Murtha’s surgeons.

Mr. Murtha was first hospitalized with gallbladder problems in December. He had surgery Jan. 28 at the National Naval Hospital in Bethesda, Md. He went home, but was hospitalized two days later when complications developed. According to a source close to Mr. Murtha — confirming a report in Politico — doctors inadvertently cut Mr. Murtha’s intestine during the laparoscopic surgery, causing an infection.

Congressman Murtha is not alone.  The Institute of Medicine estimates that 98,000 people die each year in the US from preventable medical errors. And, this number does not even include the countless other people who are injured by medical errors. Rather than reforming the legal system that provides protections to these injured patients, we must focus on reforming the medical system in this country to prevent these errors from ever happening in the first place.

Archambault Opposes Blue Cross Rate Increases

With the news that Robert Rainville, a former West Warwick Probate Judge, might run for the Democratic nomination, the hiring of staff by Peter Kilmartin and the release of some early fundraising numbers, the 2010 campaign for Rhode Island Attorney General has certainly heated up!

One of these candidates, Steve Archambault, today called on Health Commissioner Christopher Koller to reject Blue Cross’ proposed rate increases for their health insurance plans.

Pointing to a recent study released by Koller’s office that ranks Blue Cross’ Administrative expenses higher than the average in New England, Archambault called on Koller to send Blue Cross “back to the drawing board.”

“These are difficult economic times. Too many Rhode Island families are already at the breaking point and both small and large businesses are struggling to stay afloat. These proposed rate increases are simply unaffordable. The Health Commissioner should send Blue Cross back to the drawing board and demand that they cut administrative expenses and seek other efficiencies first before asking for rate hikes,” Archambault said.

In a letter to Commissioner Koller, Archambault also called for additional public hearings on the proposed 10.2% increase in direct-pay plans – the plan rate increase that is currently before the commissioner. Direct-pay plans are purchased by Rhode Islanders who do not receive health care from their employer or other group. Archambault noted that the recommendation of an independent consultant retained by the Attorney General’s office to allow an increase of 9.5% increase in direct pay plans was still too high.

“Rhode Island families are facing the most difficult economic situation in at least a generation.  There must be a new emphasis on cost-savings. All Blue Cross expenses, including top executive salaries, should receive strict scrutiny,” he said.

Archambault’s criticism comes on the heels of his first issue-based release: fighting the drinking and driving problem in Rhode Island.

Massive Recall of Tylenol Products

Johnson & Johnson has issued a massive recall of over-the-counter drugs including Tylenol, Motrin and St. Joseph’s aspirin because of a moldy smell that has made people sick.

The recall includes some batches of regular and extra-strength Tylenol, children’s Tylenol, eight-hour Tylenol, Tylenol arthritis, Tylenol PM, children’s Motrin, Motrin IB, Benadryl Rolaids, Simply Sleep, and St. Joseph’s aspirin.

Consumers should check the full list in order to identify the recalled batches.

North Providence Radiologist, Dr. Nicholas D. Iannuccilli, Allowed to Resume Practice

The Providence Journal reports that North Providence radiologist, Dr. Nicholas D. Iannuccilli, has resumed his practice after undergoing treatment for substance abuse and receiving approval from the state’s Board of Medical Licensure and Discipline.

“I never met a doctor who was so relieved to get caught. This poor fellow was crying out for help,” said Bruce McIntyre, acting administrative officer of the state Board of Medical Licensure and Discipline. “He spent a considerable amount of time in treatment.” McIntyre said that Iannuccilli had not been sued and the board had not received any complaints about the quality of his work.

In a brief phone interview, Iannuccilli said that he wrote prescriptions for Ativan, a tranquilizer, for his sister-in-law but took them himself as a sleep aid. “It was the worst decision I ever made in my life. I’m very repentant,” he said. “I’m back at work –– thank God.”

Under his agreement with the medical board, Iannuccilli’s medical license was suspended retroactively for the period from Aug. 21 through Jan. 13, at which point he was put on probation. He will be monitored for drug abuse by the Physicians Health Committee of the Rhode Island Medical Society, and his probation will continue until that committee believes he no longer needs monitoring. His license to prescribe controlled substances has been suspended for at least a year. And he must pay a $500 administrative fee.

The goal of the Board is to provide information which furthers safe and healthy lives in safe and healthy communities.  You can find out more here and you can look up the status of a doctor’s privileges and history of disciplinary actions here.

Studies Question FDA Approvals of Cardiac Devices

The New York Times reports that two studies have “found shortcomings in some clinical trials accepted by the FDA over the last decade in connection with the approval of high-risk cardiovascular devices,” such as “pacemakers, implanted defibrillators, and…coronary stents.” For its part, the FDA said it “is developing guidelines that will set tougher scientific standards for data from tests on humans” that medical device makers submit.

The first study, published in the December issue of the Journal of the American Medical Association (JAMA), showed that many cardiovascular devices are not subjected to rigorous safety and effectiveness research before being approved for use and that “it’s common for such devices to receive…approval based on information from only a single study, which raises questions about the quality of data on which some cardiovascular device approvals are based.”

Meanwhile, a second study appearing in the American Journal of Therapeutics, co-authored by a medical reviewer from the FDA’s cardiovascular device division, found that studies submitted for approval of cardiovascular devices often lack important information, including details on the studies’ participants.  The Associated Press reports that the second study “found about 40 percent of pivotal studies lacked precise targets for how safety would be measured,” and researchers “failed to fully account for what happened to all patients enrolled in the research.”

E-coli Fears Lead to Massive Beef Recall

The Associated Press reports that Oklahoma-based National Steak and Poultry “is voluntarily recalling about 248,000 pounds of beef it said might be contaminated with a strain of E. coli bacteria.”  The USDA’s Food Safety and Inspection Service “determined there is an association between non-intact steaks…and illnesses in Colorado, Iowa, Kansas, Michigan, South Dakota and Washington.”  In a statement, the company indicated that the recalled beef was “limited to beef products sold primarily to the Moe’s, Carino’s Italian Grill, and KRM restaurants in the six states.”