Health care fraud, medicaid, chestnuts roasting on an open fire

Fosamax: N.Y. FEDERAL JUDGE DISMISSES BELLWETHER FOSAMAX SUIT, In re Fosamax Prods. Liab. Litig., 25 No. 11 Andrews Pharmaceutical Litig. Rep. 1, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Merck & Co. has won dismissal of the second of three bellwether Fosamax suits scheduled for trial as part of a New York-based multidistrict litigation proceeding. U.S. District Judge John F. Keenan of the Southern District of New York granted the company's summary judgment motion in a product liability suit filed by a Mississippi woman who says she developed osteonecrosis, or jaw bone death, from using the osteoporosis drug Fosamax (alendronate).The ruling follows a mistrial recently declared.

(Reglan) Generic Drugs: FEDERAL LAW DOESN'T PREEMPT FAILURE-TO-WARN CLAIMS, Mensing v. Wyeth Inc., 25 No. 11 Andrews Pharmaceutical Litig. Rep. 2, Andrews Pharmaceutical Litigation Reporter December 28, 2009
A Minnesota woman's claims that generic-drug manufacturers violated state law by failing to warn consumers of a possible neurological disorder from prolonged use of their products are not federally preempted, the 8th U.S. Circuit Court of Appeals has ruled. The appeals court also held that plaintiff Gladys Mensing cannot sue name- brand manufacturers because she never took their products.According to the opinion, Mensing's doctor prescribed Reglan to treat a digestive disorder in 2001.

Navagil (Patent Infringement): TEVA FACES LAWSUIT OVER GENERIC VERSION OF SLEEP DISORDER DRUG, Cephalon Inc. v. Teva Pharms., 25 No. 11 Andrews Pharmaceutical Litig. Rep. 3, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Biopharmaceutical company Cephalon Inc. has filed a federal patent infringement lawsuit against Teva Pharmaceuticals USA Inc. for trying to sell a generic version of its sleep disorder drug Nuvigil. Teva is infringing three patents supporting Nuvigil in its application to market a generic equivalent of the drug in the United States, according to the complaint filed in the U.S. District Court for the District of Delaware.

Health Care Fraud: OMNICARE, IVAX SETTLE KICKBACK CHARGES FOR $112 MILLION, United States v. Omnicare, 25 No. 11 Andrews Pharmaceutical Litig. Rep. 4, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Nursing home pharmacy Omnicare Inc. has agreed to pay $98 million to settle federal allegations that it participated in Medicaid kickback schemes with drug manufacturers. Drug maker IVAX Pharmaceuticals, an alleged participant in the Omnicare scheme, agreed to pay $14 million to settle the suit, according to the Justice Department. The agency said Nov. 3 it is suing two major nursing home chains for allegedly accepting Omnicare's kickbacks in return for pharmacy services contracts.

Reglan (Generic Drugs): REGLAN MAKERS ESCAPE TEXAS GENERIC-DRUG SUIT, Burke v. Wyeth, 25 No. 11 Andrews Pharmaceutical Litig. Rep. 5, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Two major pharmaceutical companies have won dismissal from a Texas woman's negligence and strict liability suit alleging she was injured by a generic version of Reglan, used to treat gastric reflux. A federal judge in Galveston, Texas, granted motions filed by Wyeth and Schwarz Pharmaceuticals, dismissing them from Virginia Burke's suit alleging they are liable for her severe neurological disorder even though they did not make the medication she took.

Medicaid Reimbursement: CALIF. DRUG GROUPS FIGHT MEDICAID CUTS, Nat'l Ass'n of Chain Drug Stores v. Schwarzenegger, 25 No. 11 Andrews Pharmaceutical Litig. Rep. 6, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Two drugstore trade associations have asked a Los Angeles federal judge to temporarily enjoin the state government from reducing Medicaid reimbursements to individual pharmacies for the disbursement of prescription drugs. The National Association of Chain Drug Stores and the National Community Pharmacists Association sued Republican Gov. Arnold Schwarzenegger and other state officials in September when the state reduced by slightly more than 4 percent its Medicaid reimbursements to pharmacies.

Billing Fraud: DRUG COMPANIES TO PAY $124 MILLION TO SETTLE MEDICAID REBATE CLAIMS, United States v. AstraZeneca Pharms., 25 No. 11 Andrews Pharmaceutical Litig. Rep. 7, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Four pharmaceutical companies have agreed to pay state and federal agencies $124 million to resolve claims they underpaid drug rebates to the government under the Medicaid program. The settlements end a False Claims Act suit filed in the U.S. District Court for the District of New Hampshire by Ven-A-Care of the Florida Keys Inc., one of several such qui tam suits the home health care company has filed around the country.

Long Term Care: KENNEDY'S CLASS ACT SURVIVES TIGHT SENATE VOTE, 12 No. 13 Andrews Nursing Home Litig. Rep. 1, Andrews Nursing Home Litigation Reporter December 18, 2009
The U.S. Senate has narrowly voted in favor of a bill that would create a government-run plan for long-term-care insurance in its health care reform legislation. The Community Living Assistance Services and Supports Act, which aims to help seniors and disabled people remain living independently, survived a Republican- driven effort to strike the voluntary insurance plan from the Senate's health care legislation. In a 51-47 vote Dec. 4, Democrats won enough votes to retain the measure.

Long Term Care Insurance: 'MISLEADING' POLICY NETS FLA. CARE FIRM $20K AWARD, Bell Care Nurses Registry v. Cont'l Cas. Co., 12 No. 13 Andrews Nursing Home Litig. Rep. 2, Andrews Nursing Home Litigation Reporter December 18, 2009
A Florida home health care insurer must pay $20,000 to a nursing services company for care it should have covered under a woman's "misleading" policy, a state appeals court has held. The Court of Appeal's 3rd District reversed a lower court's award of summary judgment to Continental Casualty Co.The three-judge panel said the insurer cannot get away with inserting illegal provisions in its home health care insurance policies requiring that the insured receive "primary" health care services.

Arbitration Dispute: PROXY CAN'T SIGN ARBITRATION AGREEMENT, APPEALS COURT SAYS, Lujan v. Life Care Ctrs. of Am., 12 No. 13 Andrews Nursing Home Litig. Rep. 3, Andrews Nursing Home Litigation Reporter December 18, 2009
Nursing home chain Life Care Centers of America cannot enforce an arbitration agreement that a former resident's son signed as his mother's health care proxy, a Colorado appeals court has ruled. The Court of Appeals said Alvin Lujan did not have the authority to sign the agreement when his mother, Estella, entered Evergreen Nursing Home.Because Estella was incapacitated and did not select her son as a health care proxy, his decision-making abilities were limited to issues that directly.

Discovery: NURSING HOME BLOCKED MED-MAL DISCOVERY, ESTATE SAYS, Arbour v. Alterra Wynwood of Meridian, 12 No. 13 Andrews Nursing Home Litig. Rep. 4, Andrews Nursing Home Litigation Reporter December 18, 2009
The estate of a woman who suffocated at a Michigan nursing home says the facility is "stonewalling" the estate's attempts to conduct discovery and depositions in its negligence and medical malpractice actions. Plaintiff Jeffrey J. Arbour as representative of his late mother's estate asked the U.S. District Court for the Western District of Michigan to deny the facility's request for a protective order prohibiting the deposition of managers at the nursing home.

Urinary Sling: URINARY SLING DEFECT SUIT MOVES TO ARIZ. FEDERAL COURT, Hirt v. Bard Peripheral Vascular, 12 No. 13 Andrews Nursing Home Litig. Rep. 5, Andrews Nursing Home Litigation Reporter December 18, 2009
A lawsuit accusing various companies of manufacturing and selling a defective urinary sling that allegedly injured a Canadian woman will play out in a federal court in Arizona. C.R. Bard Inc. removed the case to the U.S. District Court for the District of Arizona on the ground that defendants Bard Peripheral Vascular Inc. and Davol Inc. were fraudulently joined because they did not design, manufacture or sell the sling. Plaintiff Susan Hirt lives in Ontario. C.R. Bard is a New Jersey corporation.

Medical Malpractice: DOCTORS DIAGNOSED STROKE AS THYROID DISORDER, SUIT SAYS, Talavera v. Sw. Med. Ctr., 12 No. 13 Andrews Nursing Home Litig. Rep. 6, Andrews Nursing Home Litigation Reporter December 18, 2009
A Kansas emergency room failed to diagnose or treat a Mexican woman's stroke symptoms for five days, and she was driven to Mexico by taxi and left in a public park after suffering a massive stroke, according to a federal court lawsuit. Despite numerous opportunities to identify Carmen Talavera's signs of impending stroke, five doctors at Southwest Medical Center in Liberty, Kan., failed to include stroke in her differential diagnosis.

Medicare Billing: ORE. HOSPICE SETTLES FALSE-CLAIMS CASE FOR $1.8 MILLION, 12 No. 13 Andrews Nursing Home Litig. Rep. 7, Andrews Nursing Home Litigation Reporter December 18, 2009
Kaiser Foundation Hospitals will pay $1.83 million to settle allegations that its Oregon hospice facility's failure to comply with Medicare billing regulations violated the False Claims Act. The Nov. 12 pre-suit settlement followed Kaiser's voluntary disclosure to the Department of Health and Human Services that its Portland hospice did not get written certifications of terminal illness for patients from October 2000 through March 2004, the Justice Department said.

Medicare Fraud: FEDS, N.J. HOSPITAL SETTLE FRAUD CASE FOR $3 MILLION, United States v. Besler Consulting, 12 No. 13 Andrews Nursing Home Litig. Rep. 8, Andrews Nursing Home Litigation Reporter December 18, 2009
A New Jersey hospital will pay the federal government $3 million to settle a whistle-blower suit alleging Medicare billing fraud. Concurrently with settling its case against Trinitas Regional Medical Center in Elizabeth, N.J., the Justice Department said it was intervening in the same whistle-blower case against another defendant, Brookhaven Memorial Hospital Medical Center in East Patchogue, N.Y.

News Brief: FEDS RELEASES LIST OF NATION'S WORST NURSING HOMES, 12 No. 13 Andrews Nursing Home Litig. Rep. 9, Andrews Nursing Home Litigation Reporter December 18, 2009
The Centers for Medicare and Medicaid Services has released its annual report on the performance of nursing homes with a history of serious care quality issues. The report, released Nov. 25, details the ongoing status of nursing homes enrolled in CMS' "special focus facility" initiative. The program requires nursing homes with a greater number of documented deficiencies and problems, such as frequent resident injuries, to undergo additional inspections by CMS and state representatives.

News Brief: OBAMA LAUNCHES NEW BIOETHICS COMMISSION, 12 No. 13 Andrews Nursing Home Litig. Rep. 10, Andrews Nursing Home Litigation Reporter December 18, 2009
President Obama has created a new commission to advise him on issues that may arise as a result of advances in biomedicine and related areas of science and technology. The Presidential Commission for the Study of Bioethical Issues, created by executive order Nov. 30, replaces former President George W. Bush's Council on Bioethics. Obama abolished the council in June. The White House said in a statement that the new commission will identify and promote policies and practices.

Wrongful Termination: NURSING ASSISTANT SUES FACILITY, UNION FOR WRONGFUL TERMINATION, Dischinger v. Extendicare Homes, 12 No. 13 Andrews Nursing Home Litig. Rep. 11, Andrews Nursing Home Litigation Reporter December 18, 2009
A former nursing assistant accused of sexual abuse at a Minnesota long term care facility has filed a lawsuit in Minnesota federal court, alleging his union intentionally failed to pursue his wrongful-termination grievance within the required time period. In his complaint filed in the U.S. District Court for the District of Minnesota, Mark Dischinger says the Service Employees Healthcare Minnesota, Local 113 of the Service Employees International Union, engaged in "back- channel discussions".

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