Beshear to study nursing-home staffing minimums, suggests homes' high liability costs are related to poorly ranked care

Responding to a letter from Kentuckians for Nursing Home Reform, which cited a low ranking for the state's nursing homes, Gov. Steve Beshear said he is "committed to taking steps toward improving the quality of care in Kentucky nursing homes," Valarie Honeycutt Spears reports for the Lexington Herald-Leader.

Beshear said he would call for forums across the state to allow the public and nursing-home residents to discuss their ideas for improvement, and would research the impacts of increased staffing in nursing homes. The reform group wants minimum staffing requirements, which the nursing-home industry opposes.

"I take this challenge very seriously and will be working with my staff and the state's Elder Abuse Committee over the coming months to explore ways in which we can improve the quality of care," the governor said in a Nov. 5 letter to Bernie Vonderheide, founder of the nursing-home reform group.

Vonderheide wrote Beshear in August after Kentucky was ranked 40th in nursing-home care by Families for Better Care, a Florida-based advocacy group for nursing-home residents. On a grade scale of A to F, the group gave Kentucky a D. The grade was determined by analyzing eight federal measures of nursing home quality, according to the group's release.

Beshear suggested in his letter that the low ranking of Kentucky's nursing homes might be related to another of their lobbying concerns — liability costs that are well above national norms. The homes want to limit those costs by subjecting lawsuits against them to medical review panels, which couldn't block the suits but would give the homes leverage in settlement negotiations.

The governor said "a trend emerges" when the low ranking is matched with an actuarial report showing that a typical 100-bed nursing home in Kentucky has annual liability costs of $535,000, while the national average is $154,000. Kentucky was among the states with high liability costs that received a below average or failing grade on the Families for Better Care report, Beshear noted.

Vonderheide said the letter marked "the first time . . . that a Kentucky governor has embraced nursing home staffing standards." Actually, as Spears reports, Beshear "said he would ask program leaders from the Cabinet for Health and Family Services to research the impact that increasing nursing home staffing could have in Kentucky." (Read more)

The Herald-Leader said in an editorial on the issue, "Listening, exploring, collecting information and ideas must lead — quickly — to action."

Health care's culture doesn't encourage doctors to report medical errors of colleagues; article says patients should come first

By Melissa Patrick
Kentucky Health News

Doctors are often aware of their colleagues' medical errors, but fail to report them because of a culture that does not support or encourage such actions, Marshall Allen writes for ProPublica, a non-profit, non-partisan journalism organization.

Medical errors are estimated to kill 400,000 people in U.S. hospitals each year according to an online article by John T. James in the Journal of Patient Safety, causing some to say that medical errors are one of the nation's leading causes of death, Allen reports.

According to a report from the U.S. Department of Health and Human Services, most health-care providers employ a philosophy of "deny and defend" when confronted with issues related to medical errors. Providers fear full disclosure will lead to more lawsuits, higher jury awards, higher insurance premiums, and the loss of reputation or coverage for the provider, the opposite is true, the HHS report says. It says honest and open communication helps to lessen malpractice costs.

The Department of Veterans Affairs Medical Center in Lexington has led the way in the move toward health-provider transparency. It has worked under a philosophy of full transparency and disclosure since 1987, requiring prompt reporting and investigation of medical errors and near misses, full investigation, full disclosure of investigation results to the patients and families who have been injured because of accidents and medical negligence, and expressions of apology and  fair remedy, including compensation for injuries, according to the HHS report.

Several years ago, Allen contacted a Las Vegas surgeon to follow up on hospital data that showed peers of this surgeon that had high rates of surgical injuries. Allen reported that before he could reveal the list of peers to the surgeon and request his services in the investigation, the surgeon shared stories of the many surgeries he and his partners did to "clean up" the mistakes of "the worst surgeons in town" and said "he did not need a database to tell him which surgeons made the most mistakes."

An article in the New England Journal of Medicine, “Talking With Patients About Other Clinicians’ Errors,” says that although there is a common belief that there is an ethical duty to inform patients who have been harmed by medical errors, physicians often do not.

The existing guidelines emphasize ethical duties related to self reporting when physicians make  errors, says the report, but offers little guidance about what to do when they discover someone else's mistake.

In a survey separate from the New England Journal of Medicine report, but led by the same main author, more than half of doctors said that in the previous year they had identified at least one error by a colleague.  Gallagher told Allen that the survey did not ask what the doctors did about it.

For the New England Journal report, Dr. Thomas Gallagher, an internist and professor at the University of Washington, led a team of 15 experts who identified possible reasons doctors stay silent about errors by their peers. One reason is the system of referrals on which doctors depend, Allen reports; if a physician "becomes known as a tattler" he or she will lose referrals, and thus suffer financially.

The report lists other reasons for not reporting colleagues' medical errors, such as lack of time to investigate, a culture that promotes loyalty and solidarity, concerns about harming one's institution or becoming involved in a medical malpractice case,  concerns about causing a colleague to face legal issues,risk of acquiring an unfavorable reputation with colleagues and issues related to cultural differences, gender, race and seniority.

The bottom line, Gallagher told Allen, is that "physicians are not learning from their errors and patients are not getting the information they need to receive proper treatment or compensation when the outcome is harmful."

Dr. Brant Mittler, a cardiologist who works as a medical malpractice attorney in Texas, told Allen that in almost four decades in medicine he often saw errors and stayed quiet because "there would have been hostility" if he had reported them. “There’s not a culture where people care about feedback,” Mittler said. “You figure that if you make them mad they’ll come after you in peer review and quality assurance. They’ll figure out a way to get back at you."

Gallagher told Allen, "The result of this culture is too much leniency toward mistakes."

The New England Journal article said that despite the challenges of disclosure, the patient comes first, and doctors should "explore, not ignore" a colleague's error, Allen notes.

Once an error is suspected, the report suggests, the doctor recognizing the error should find the facts, starting with a direct conversation with the physician who made the error so together they can decide how to inform the patient. The article also suggests that hospitals and other health-care institutions lead by supporting transparency.

Dr. David Mayer, vice president of quality and safety at Medstar Health, which runs 10 hospitals in Maryland and Washington, D.C., told Allen that "reporting of medical errors (and near misses) is a top priority at the organization so everyone can learn from mistakes, saying that each month there are about 1,400 reported safety events."

The safety events are analyzed for trends, Mayer told Allen.  If a patient is harmed, an investigation is conducted and the information is disclosed to the patient and family, an apology can be made and compensation can be offered.

Dr. Humayun Chaudhry, president and CEO of the Federation of State Medical Boards, which provides guidance for how state boards regulate doctors, told Allen that doctors and other providers should be more assertive about reporting errors. "Failing to tell a patient about another doctor's mistake undermines the doctor-patient relationship," Chaudhry told Allen. "It makes patients wonder if they can trust their own physicians and the profession of medicine."

Conway says ruling in his Oxycontin lawsuit means he will seek settlement of $100 million or more

Attorney General Jack Conway says he wants Purdue Pharma to settle for $100 million or more after it missed a deadline to respond to his arguments in his lawsuit over the marketing of Oxycontin, Nick Strom reports for cn|2, a news service of Time Warner Cable. After Purdue Pharma failed to respond to a court motion, "all the admissions the commonwealth sought in the case were deemed admitted" by the circuit judge hearing the case in Pike County.

"Judge Steven Combs ruled Monday that Purdue could not withdraw those admissions which include that the drug maker: misrepresented and/or concealed the addictive nature of OxyContin, knew OxyContin was being abused and wasn’t being used for its stated purpose, continued to market and promote OxyContin despite knowing that, and encouraged physicians to overprescribe the drug," Storm reports. Conway told him, "I expect that a jury would be very very harsh on Purdue Pharma. I’m not going to be really negotiating much less or below nine figures. I want to see something well into nine figures.” (Read more)

Purdue Pharma has been blamed for starting, in Central Appalachia, the national epidemic of prescription-painkiller abuse and deaths. More than 1,000 Kentuckians die each year from prescription overdoses, the sixth highest rate in the country. Forbes ranked the Kentucky as the fourth most medicated state, according to Conway's office. More Kentuckians die from overdoses than in traffic accidents. (Read more) Map by Kentucky Justice and Public Safety Cabinet:

Adair County Hospital District files Chapter 9 bankruptcy

In a move perhaps unprecedented in Kentucky, the Adair County Hospital District has voted to file for protection under Chapter 9 of the federal bankruptcy code, the same chapter used by bankrupt cities such as Detroit.

The district has a $20 million debt, creditors demanding payment, and no clear way to pay them. "The Chapter 9 filing will allow the hospital district to reorganize by extending the timeline to repay debt, refinance debt, or reduce debt by different means. It does not liquidate the taxing district nor does it close down operations" of Westlake Regional Hospital in Columbia, reports Sharon Burton of the Adair County Community Voice.

David Cantor, an attorney with Seiller Waterman LLC in Louisville, told Burton the filing is “incredibly rare” and perhaps the first in the state. “We cannot find any published cases of a Chapter 9 in the Commonwealth of Kentucky,” he said.

Farmers National Bank of Danville has sued in state court, seeking to force the  district board to levy a local property tax to pay its debt. "The federal court will, however, now likely decide the local taxation issue," Burton reports. "The hospital board voted to establish a tax but it is stalled until at least the 2014 general election after a group of citizens successfully filed a recall petition."

Only part of the Community Voice story is online, but a 7 MB PDF of its three pages with hospital news can be downloaded here.

Christian program resumes operation, paying medical bills for churchgoers who vow not to smoke, drink or have extramarital sex

http://www.kentucky.com/2013/07/26/2733933/medi-shares-legal-battle-with.html

Chief of cardiothoracic surgery and pediatric heart program at UK, suspended from surgeries, takes job in Florida

Dr. Mark Plunkett, the chief University of Kentucky cardiothoracic surgeon whose surgery program was suspended last year for unspecified reasons, has accepted a new job a the University of Florida.

The internal review of UK HealthCare's pediatric cardiothoractic program is ongoing and should be completed in the next few weeks, Michael Karpf, UK's executive vice president for health affairs, told Linda Blackford of the Lexington Herald-Leader.

In December, Brenna Angel, reporter for university radio station WUKY, identified Plunkett as the surgeon at the center of the program review. At the time, Plunkett was on a leave of absence but remained on staff with a $700,000 salary, Angel reported. WUKY requested data under the Kentucky Open Records Act about Plunkett's most recent surgery and his patient mortality rate, but UK denied such requests. Attorney General Jack Conway ruled that UK must release the mortality rates and other data, but UK Has appealed to Fayette Circuit Court, citing privacy rules in the federal Health Insurance Portability and Accountability Act, even though Conway said HIPAA doesn't preempt the Open Records Act, as Angel reported. Angel has since left the station for Lexington city government but the station and the Herald-Leader are defending the appeal.

In addition to being chief of UK's Division of Cardiothoracic Surgery, Plunkett was director of its pediatric cardiac program and a co-director of UK's Gill Heart Institute, says his UK biography. He came to UK in 2007 from the UCLA medical center, where he worked with Karpf. His resignation is effective Aug. 14, UK officials told Blackford.

Judge refuses to stop Kentucky Spirit from leaving the state, saying health cabinet has had plenty of time to prepare

A Kentucky Court of Appeals judge refused on Monday to stop Medicaid managed-care firm Kentucky Spirit from leaving the state on Friday, July 5. Chief Court of Appeals Judge Glenn E. Acree denied the Cabinet for Health and Family Services' emergency motion to require the company to stay through August.

Read more here: http://www.kentucky.com/2013/07/01/2700062/court-refuses-to-block-kentucky.html#storylink=cpy

Last week, a Franklin Circuit Court judge said  the state can't require Kentucky Spirit to keep serving Medicaid beneficiaries two months beyond its July 5 exit date. When filing the emergency motion last week, Cabinet officials said that if Kentucky Spirit leaves the state without a two-month transition plan, it will “jeopardize the health” of 125,000 people.

However, Acree said the cabinet has had plenty of time to prepare for the company's departure, reports Beth Musgrave of the Lexington Herald-Leader. Furthermore, Kentucky Spirit said the state has refused to work with it to ensure an “effective” transition, and Franklin Circuit Judge Thomas Wingate said last week that the state has “been repeatedly cautioned by this Court to prepare for this contingency, and a lack of preparation at this junction does not warrant a grant of the extraordinary remedy of injunctive relief” requested by the state.

The cabinet argues that Kentucky Spirit did not communicate its intentions to leave, despite Wingate's May 31 ruling until the cabinet took Kentucky Spirit back to court earlier this month, reports Musgrave. However, Kentucky Spirit said in October 2012 that it was pulling out of Kentucky's managed-care system because it was losing too much money covering the 125,000 Medicaid enrollees contracted to the company.

So what will happen now? The cabinet has argued that the two other Medicaid managed care companies — Coventry Cares and WellCare — would take on the Kentucky Spirit beneficiaries and letters have been sent to Kentucky Spirit's clients and to health care providers.  A May ruling said Kentucky Spirit could face fines if it terminates its three-year contract before expiration in July 2014; Kentucky Spirit's appeal in that case is still pending. 

Kentucky Spirit still plans to leave state July 5; judge rules that state can't require company to stay for two-month transition

In the latest development in the saga of the state Cabinet for Health and Family Services and Medicaid managed-care firm Kentucky Spirit, the company appears to be the victor, at least for now, because a Franklin circuit judge this week that the state can't require it to keep serving Medicaid beneficiaries two months beyond its July 5 exit. Cabinet officials have appealed the decision, saying that if the company darts out of the state without a two-month transition plan, it will “jeopardize the health” of 125,000 people.

A May ruling said Kentucky Spirit could face fines if it terminates its three-year contract before expiration in July 2014. The company appealed. On Wednesday, it said it intends to leave Kentucky July 5, just as it made clear last year. The state appealed Thursday, and unless the court's decision is reversed next week in the Kentucky Court of Appeals, Kentucky Spirit will be able to bolt out of Kentucky on July 5, despite the damages it may face, reports Tom Loftus of The Courier-Journal.

The state's appeal aims to keep the company in Kentucky until August to grant the cabinet enough time to switch the 125,000 people covered by Kentucky Spirit to the other two managed-care firms. Cabinet officials say this transition time is vital, especially for a more vulnerable population, because transferring Medicaid recipients to Coventry Cares or WellCare will take time.

“A sudden cessation of services by Kentucky Spirit would jeopardize the health of its approximately 125,000 members, particularly those who require uninterrupted treatment or care which their new MCO would be unable to coordinate without advance notice,” said the emergency motion filed by the cabinet on Thursday, reports Ryan Alessi of cn|2's "Pure Politics."

Kentucky Spirit says the state has refused to work with it to ensure an “effective” transition, and it's now the state's responsibility to do so. Franklin Circuit Judge Thomas Wingate, who no longer has jurisdiction on the matter since Kentucky Spirit appealed, said the state has “been repeatedly cautioned by this Court to prepare for this contingency, and a lack of preparation at this junction does not warrant a grant of the extraordinary remedy of injunctive relief” requested by the state.

Regardless of what happens, Medicaid beneficiaries assigned to Kentucky Spirit shouldn't worry because their coverage will be honored by providers, cabinet spokeswoman Jill Midkiff told Alessi. In an earlier report, Midkiff said providers may feel the blow of this disruption, but Medicaid beneficiaries won't. “There won’t be disruption of services to members,” Midkiff told Loftus, “But there will be a disruption ... confusion with providers and paperwork and who they bill.”

Kentucky Spirit, a subsidiary of St. Louis-based Centene Corp., announced in October 2012 that it was pulling out of Kentucky's managed-care system because it was losing too much money covering the 125,000 Medicaid enrollees contracted to the company. Kentucky Spirit argues in its lawsuit that the state rushed to privatize Medicaid in 2011 and provided incorrect cost information to the bidders, causing the firm to lose about $120 million. It made the lowest bid, and on average, gets about $100 less per month for each patient than the other two managed-care companies in the state.

The school health services gamble: Ky. health departments could win on the state's bet against Kentucky Spirit's appeal of ruling

By Molly Burchett
Kentucky Health News

Kentucky’s health departments may soon get money for school nurses, based on a court ruling in May that said Medicaid managed-care firm Kentucky Spirit must pay for treatments provided by the nurses. The money wouldn't be coming from Kentucky Spirit, at least immediately, but from funds the state is withholding from the company, betting the payments on a court victory.

Circuit Judge Phillip Shepherd of Frankfort ruled in May that Kentucky Spirit must pay $8 million for services provided by school nurses, and the state has been withholding payment to the managed care company until it complies with the ruling, reports Ronnie Ellis, Frankfort correspondent for Community Newspaper Holdings Inc. On Monday, Shepherd told attorneys for the Cabinet for Health and Family Services and Kentucky Spirit that he is “inclined” to order the state to pay the health departments out of those withholdings.

The cabinet wants Kentucky Spirit to post bonds to cover the disputed payments during the company's appeal process. If the state made payments directly to the health departments, it would be gambling at its own risk, reports Ellis. If Kentucky Spirit wins its appeal of Shepherd’s earlier ruling, the state would have to refund the money, and the health departments would keep the payment.

This lawsuit originally came about when Kentucky Spirit stopped providing coverage for school health services last summer. The company said its state contract didn't require payment for such services, even though the state's Medicaid program has always paid for these services and other managed care companies were providing coverage for them. The court ruled that Kentucky Spirit must pay health departments, and the company appealed the decision.

Regardless of the source of funds, health departments and school districts could find some relief if payments are made because many school nurse programs were threatened by cutbacks and closings as a result of Kentucky Spirits failure to pay for school services.

Shepherd will allow attorneys for the state to respond to the motion and hear arguments on July 25, Ellis reports.

Kentucky Spirit can't terminate its Medicaid contract with the state a year early without facing fines, judge rules

By Molly Burchett
Kentucky Health News

A Frankfort circuit judge ruled Friday that Kentucky Spirit, one of three companies hired by the state in November 2011 to manage health care for more than 540,000 Medicaid recipients, cannot pull out of its contract with the state a year early with no financial penalty.

Kentucky Spirit, a subsidiary of St. Louis-based Centene Corp., announced in October 2012 that it was pulling out of Kentucky's managed-care system because it was losing money, but the company could face fines if it terminates its three-year contract before expiration in July 2014, Franklin Circuit Judge Thomas Wingate said in his ruling.

Kentucky Spirit argued in its lawsuit that the state rushed to privatize Medicaid in 2011 and provided incorrect cost information to the bidders, causing the firm to lose about $120 million. It made the lowest bid, and on average, gets about $100 less per month for each patient than the other two MCOs, Coventry Cares and WellCare.

The Cabinet for Health and Family Services replied that Kentucky Spirit had breached its contract with the state. Wingate said it had not, because it gave notice of early termination, but it will be subject to fines if it pulls out of the state before July 2014, reports Beth Musgrave of the Lexington Herald-Leader.

Kentucky Spirit had argued that its contract allows it to to be terminated with six months notice. The six-month provision could only be interpreted to mean six months prior to the end of the three-year contract, said Wingate, because there has to be enough time for the state to move hundreds of thousands of Medicaid patients from Kentucky Spirit to another managed-care provider.

Jill Midkiff, a spokeswoman for the cabinet, told Musgrave that state officials were thrilled with Wingate's decision. "The cabinet's priorities are the members who receive health care through Medicaid and the taxpayers who pay for the program," she told Musgrave. "This is the right decision for both."

Friday's decision came three days after another Franklin Circuit Court judge ruled that Kentucky Spirit must reimburse health departments for services provided by school nurses to Medicaid-eligible children, which is estimated include about $8 million in back payments.

Centene officials say they are considering options for both cases, which include appeals.

Kentucky Spirit's legal battles are part of ongoing tensions between health-care providers and managed-care companies, and providers have repeatedly complained that the companies are delaying payments for services. The cabinet is hosting a series of forums across the state designed to help providers resolve such issues with the managed care companies.

Judge orders Medicaid managed-care firm to pay for school health services, including $8 million in claims; appeal possible

Medicaid managed care company Kentucky Spirit must cover preventive care services provided by local health departments in schools, a judge has ruled.

Circuit Judge Phillip Shepherd of Frankfort said the company must pay $8 million for the services already provided by school nurses, which would be only .07 percent of its estimated profit for 2013, according to the updated earnings report of Centene Corp. of St. Louis, the parent company for Kentucky Spirit. The company is the only one of the five managed care organizations in Kentucky  that had disputed the coverage of school health services.

Kentucky Spirit stopped providing coverage for school health services last summer, saying its state contract didn't require payment for such services,but Shepherd noted that the state reimbursed health departments for school services before it transitioned to managed care, reports Tom Loftus of The Courier-Journal. “Kentucky Spirit is not free to disregard this longstanding interpretation of Medicaid eligibility and unilaterally re-interpret these to the detriment of local health departments,” Shepherd wrote.

Health departments and school districts will now find some relief because many school nurse programs were threatened by cutbacks and closings as a result of Kentucky Spirits failure to pay for services. “It’s great news because there have been dozens of districts that have had to either say they are going to cut back on nurses, or that they are going to close clinics, or that they are going to dip into their reserves to try to cover the additional costs,” Kentucky School Boards Association spokesman Brad Hughes told Loftus.

Gov. Steve Beshear said Kentucky Spirit had “sought a loophole” in its contract to avoid paying for school health services covered by Medicaid, writes Loftus. Centene released a statement later Tuesday saying that the company is reviewing options and considering an appeal.

This isn't the only payment Centene is trying to avoid. A ruling is expected soon in a lawsuit the company filed against the state last year seeking to end its contract a year early, saying the state rushed to privatize Medicaid in 2011 and provided incorrect cost information to the bidders, causing the firm to lose about $120 million.

Appalachian Regional Healthcare, the largest health-care system in Eastern Kentucky, filed suit in April of this year against Kentucky Spirit for $5.9 million in unpaid claims. This suit is still pending, and was filed just before Centene raised its full-year forecast for premium and service revenue to $10.1 billion to $10.4 billion, Reuters reports.

Nursing homes push for lawsuit protection with fast-moving bill and broadcast ads; newspaper editorials excoriate sponsor, industry

A state Senate committee has approved a bill that would require lawsuits against nursing homes to clear a review panel before going to court, a move that has drawn very sharp criticism from the editorial pages of the state's two largest newspapers. Meanwhile, the nursing-home industry is running television and radio ads urging calls to legislators in favor of the measure, which the Senate Health and Welfare Committee approved 7-4 last Wednesday without hearing from its opponents.

"Slimy action on questionable bill" read the headline over Tuesday's Lexington Herald-Leader's editorial, which began, "Good ideas can withstand criticism. So, when lawmakers move a piece of legislation without hearing from any of its opponents, you have to wonder whether they're sneaking through a stinker."

The chairman of the committee and the bill's sponsor, Sen. Julie Denton, R-Louisville, said some members had to leave for other meetings. "But somehow they had time to listen to industry spokesmen before voting," the Herald-Leader noted. "The nursing home industry claims that it is under siege from frivolous lawsuits drummed up by attorneys advertising for clients and that this legal threat pushes up nursing homes' insurance and legal costs, taking money that otherwise could go into patient care." (Read more)

The Courier-Journal editorial, which first reported the committee's action, accused Denton of "a brazen abuse of her power as committee chairman" and said sarcastically that she was "humane" to spare members of he committee "the ugly details of nursing home neglect and abuse. . . . Why should members, before lunch, have to consider graphic testimony about bedsores, near-starvation, dehydration and bowel obstructions suffered by elderly, helpless people? But for members of the General Assembly who are interested in the facts, here are some:

• Kentucky currently has about 23,000, mostly frail, elderly people who are residents in about 280 nursing homes. About half the homes have been cited by federal inspectors for a serious deficiency since 2009.
• 40 percent of the homes are rated at below average by the U.S. Center for Medicare and Medicaid Services when it comes to basic health and safety.
• In 2012, Kentucky ranked first in overall federal fines for violations and one Kentucky nursing home racked up the nation’s highest fines for the year.
• Kentucky ranks first in serious nursing home deficiencies that threaten the safety of residents. (Read more)

Sen. Ray Jones, D-Pikeville, who called Denton's move "blatantly wrong." has filed several floor amendments to the bill, which remained in the Senate Rules Committee Monday.

The Kentucky Association of Health Care Facilities is pushing the bill with TV and radio commercials urging calls to legislators. It placed $9,464 worth of ads on Lexington TV stations through Feb. 14.

Pike court will keep lawsuit county and attorney general filed against Purdue Pharma over damage done by its OxyContin

A state court will hear the Kentucky attorney general's 2007 lawsuit against OxyContin manufacturer Purdue Pharma, against the wishes of the company. The U.S. Court of Appeals for the 2nd Circuit affirmed a lower court's order returning the suit to Kentucky from New York's Southern District, where Purdue wanted the case heard. The suit was filed in Pike Circuit Court, in Kentucky's easternmost county.

"After years of delay tactics, Purdue will now answer to a Kentucky court and a Kentucky jury," Attorney General Jack Conway said. Purdue Pharma spokeswoman Libby Holman said the company is disappointed by the decision, but now it is "fully prepared to vigorously defend this action on its merits, and we expect to prevail."

Then-AG Greg Stumbo and Pike County sued Purdue Pharma in October 2007, alleging that the company's "aggressive and deceptive marketing campaign saddled taxpayers with millions of dollars in social, health care and other costs," Laura Ungar of The Courier-Journal in Louisville reports. The suit also alleges the company misled health-care providers, consumers and the government about the highly addictive nature of OxyContin. The suit is largely based on admissions of guilt made by the company and several top-ranking company officials in a May 2007 Virginia federal court settlement. Purdue Pharma, its president, chief legal counsel and former medical director pleaded guilty to misleading doctors, regulators and patients about OxyContin during that case.

The nation's prescription-drug epidemic apparently began in the region, largely because of the introduction and high rate of prescription of OxyContin. Kentucky has nearly 1,000 overdose deaths a year. Conway's office said the suit against Purdue Pharma seeks reimbursement for drug-abuse programs, law-enforcement actions and prescription payments through Medicaid and the Kentucky Pharmaceutical Alliance Program. (Read more)

Judge rules University of Louisville's hospital is public and subject to Open Records Act; it may appeal

The University of Louisville's hospital is a public entity, a Jefferson Circuit Court judge has ruled in a lawsuit filed to get access to the university's deals with other health providers.

Judge Martin McDonald ruled yesterday in favor of The Courier-Journal, WHAS-TV and the American Civil Liberties Union, noting that the university makes or approves all appointments to University Hospital's board of directors. The university had argued that the board, and thus the hospital, was not a public agency under the state Open Records Act.

The hospital said it might appeal the ruling. McDonald gave it 30 days to give him the records being sought, along with arguments about why they should be exempt" under exceptions to the law, reports The C-J's Andrew Wolfson. "He gave the news organizations at the ACLU 20 days to respond to any claimed exemptions." The hospital has said revealing contracts would put it at a competitive disadvantage.

The suit began after the university refused to let the plaintiffs see records related to its proposed merger with Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health Care System. Gov. Steve Beshear vetoed the merger on grounds that a public hospital should not be bound by a religious organization's health-care policies. This month the hospital announced a new deal with KentuckyOne Health, which includes the faith-based entities, but said reproductive services would not be affected despite a policy of "respect" for Catholic health directives. (Read more)

Suit alleging unnecessary procedures at London hospital is the 31st by plaintiff's attorney in past year

More than 300 former heart patients at the Saint Joseph London hospital have sued it, its cardiologists and agencies involved with its operation and billing services, alleging the patients were subjected to unnecessary medical procedures.

"The lawsuit was filed by Louisville attorney Hans Poppe, who has previously filed similar lawsuits," 30 in the past year, Nita Johnson reports for The Sentinel-Echo of London. "This last lawsuit is a compilation of 339 cases that Poppe has had investigated."

Claims in a lawsuit state only one side of a case. A hospital spokesman said, "We are aware of the lawsuits and take the allegations seriously, but we cannot comment any further on pending litigation." (Read more)

Beshear to have outside panel review cases of children killed or life-threatened by abuse

An independent panel of experts will review cases of children who have been killed or severely hurt by child abuse or neglect, Gov. Steve Beshear announced Monday. The panel will have 17 members and be based in the Justice and Public Safety Cabinet. Its aim will be to assess if the state's child-protection workers did all they could to protect children who died as a result of abuse. It will also determine causes of death.

The Cabinet for Health and Family Services "released thousands of pages of documents Monday that detail the state's involvement with dozens of children who were killed or nearly killed as a result of abuse of neglect," reports Beth Musgrave for the Lexington Herald-Leader. "Still, the cabinet continues to withhold some case files and has redacted large portions of others."

The release is the result of a lengthy court battle between the cabinet and the state's two largest newspapers, the Herald-Leader and The Courier-Journal. The newspapers argued documents pertaining to these cases were subject to open record laws and Franklin Circuit Court Judge Phillip Shepherd agreed. The cabinet released 76 of about 140 files, but with key information omitted. In February, Shepherd ruled the cabinet had 90 days to hand over remaining case files, fined the cabinet $16,000 for withholding the records and ordered it to pay $57,000 in attorney fees for the newspapers.

The cabinet appealed the ruling in the Court of Appeals, but on July 9, the court sided with the newspapers, refusing to allow the documents from being withheld. More than 40 similarily-redacted cases were released yesterday but the cabinet filed an appeal with the Kentucky Supreme Court. "We disagree on how much personal information about the children and private individuals included in caseworker files should be made public," Cabinet Secretary Audrey Haynes said.

Also yesterday, Beshear issued an order to create the panel, which will meet four times a year and will issue an annual report that details issues it finds. "When a child dies or is critically injured because of abuse or neglect, we must carefully review the practices of all government entitites involved to make sure that our system performed as it was supposed to — and if not, that review allows us to take disciplinary action," Beshear said.

Panel members will include law enforcement, prosecutors and medical experts, Musgrave reports. While the meetings will be open to the public, the records consulted during them will not be subject to open records laws. (Read more)

Work of UK prof was cited in decision on health care

Professor Nicole Huberfeld.
University of Kentucky photo.

The work of a University of Kentucky law professor helped shape the U.S. Supreme Court's ruling on the constitutionality of the federal health-care reform law. 

Two of the major issues in question was whether the government could be force people to buy health insurance — often referred to as the individual mandate — and if the federal government could use its fiscal powers top make states expand Medicaid eligibility to 133 percent of the federal poverty level. The mandate was upheld, as was the Medicaid expansion, though the ruling will allow states to choose whether or not they want to expand their programs.

Justice Ruth Bader Ginsburg cited the work of UK professor Nicole Huberfeld "in a portion of her concurring opinion dealing with the expansion of Medicaid," reports Brian Powers for Business Lexington. In her work, Huberfeld has focused on the program for the poor and disabled and had researched "the intersection of constitutional law and health-care law," Powers reports.

When Huberfeld was told her work had been cited she said it was "amazing," as well as "thrilling ... humbling." She added, "We sometimes feel that we perform our research and publish it and get it out there, and to know that someone is actually reading it is really gratifying. When you write, you hope that someone reads your research." (Read more)

State takes Medicaid contractor Coventry's side at hearing over dispute with Appalachian Regional Healthcare

"Appalachian Regional Healthcare argued for a federal injunction against Medicaid contractor Coventry Cares on Tuesday as negotiations for a new agreement between the two have stalled," reports Mike Wynn of The Courier-Journal.

At a hearing before District Judge Karl Forester, "Witnesses for ARH testified that Coventry will no longer provide an adequate network of hospitals and doctors if a contract is not renewed with ARH, which operates eight hospitals and additional clinics in the area. But Coventry and the state Cabinet for Health and Family Services dispute those claims and called witnesses to defend Coventry’s network of health care providers." (Read more)

Forester asked ARH and Coventry to submit proposed findings by tomorrow, reports Valarie Honeycutt Spears of the Lexington Herald-Leader, giving the case background: "After Coventry said it would sever its contract with ARH, the hospital company filed a lawsuit in U.S. District Court in Lexington. Coventry agreed to continue its contract until June 30 while renegotiating for long-term coverage." (Read more)

New law will allow officers to make arrests in emergency-room assaults that they do not witness

Emergency-room workers who treat individuals under the influence of drugs or alcohol will have greater legal protection, and those who misbehave in ERs will have less protection, under a law that will take effect next month.

The measure, sponsored by Sen. John Schickel, R-Union, will allow peace officers to make an arrest or issue a citation for a fourth-degree assault that occurs in a hospital emergency room, even if the officer didn’t witness the crime, as long as the officer has probable cause to believe the offense occurred.

“Hospital emergency personnel treat individuals in the worst of conditions – and sometimes that means putting themselves at risk, if a patient comes in intoxicated or high,” Gov. Steve Beshear said at a ceremonial signing of the bill today.  “This law gives medical staff the security of knowing that an offender will be held accountable for an assault that takes place when they’re brought in for care.”

Under current law, a hospital worker has to swear out a warrant alleging assault. Fourth-degree assault is a Class A misdemeanor, punishable by up to a year in jail.

Nursing home chain says it will lease its Kentucky facilities because legislature didn't pass bill to filter lawsuits

A major nursing-home chain says it will lease all of its Kentucky properties to a Texas company because a bill to insulate nursing homes from lawsuits did not pass the General Assembly this year,

Extendicare Health Services owns Pembroke Nursing and Rehabilitation Center, Shady Lawn Nursing Home in Cadiz and 19 other facilities in Kentucky, reports Nick Tabor of the Kentucky New Era in Hopkinsville. The company has been riddled with problems. A 2009 study ranked three of its Kentucky facilities among the country's worst nursing homes.

"The combination of a worsening litigation environment and the lack of any likelihood of tort reform in the state of Kentucky has made this the prudent decision for our company and its unitholders," said Tim Lukenda, president and CEO of Extendicare.

In this year's legislative session, nursing homes lobbied for a law that would have created medical review panels to evaluate potential lawsuits against nursing homes, personal-care homes and some facilities for the intellectually and developmentally disabled. The goal of the panel was to help eliminate frivolous lawsuits against the long-term care industry.

The Pembroke facility has been sued 20 times in Christian Circuit Court since 2002, and seven of the suits are still pending, Tabor reports. The others were dismissed, most with confidential settlements. (Read more)