Articles Posted in Nursing Home Abuse

A recent review by the Washington Post of lawsuits against pharmaceutical companies shows that drug manufacturers pay billions in settlements and criminal penalties for irregular and illegal marketing of prescription medications. Doctors who participate in the marketing schemes, usually by accepting kickbacks for prescribing particular drugs, however, rarely if ever receive any punishment. This presents a concern for nursing home residents and their advocates. While the big drug companies present deeper pockets and higher-profile targets for regulators, doctors work on the front lines, so to speak, and have the greatest ability to assess the need for particular drugs. Ultimately, the decisions of doctors have the capacity to do the most harm to patients in these situations.

This Maryland Nursing Home Lawyer Blog has reported earlier on a complaint by the U.S. Department of Justice against Johnson & Johnson regarding alleged kickback payments to a large pharmacy for sales of antipsychotic medications like Risperdal. The suit alleged that J&J’s actions violated warnings from the Food and Drug Administration regarding the accuracy of Risperdal’s marketing materials. Drug manufacturer Eli Lilly pleaded guilty in 2009 to illegally marketing the antipsychotic drug Zyprexa to elderly patients. Accusations of marketing fraud regarding prescription medications and outright kickbacks to pharmacies and doctors in exchange for promoting certain drugs have hit at least fifteen pharmaceutical and medical device companies in the past few years.

The liability for illegal marketing and payment of kickbacks can be substantial for these companies. Eli Lilly paid $1.4 billion for penalties in the Justice Department’s case and settlements in four separate lawsuits related to Zyprexa. Alpharma paid $42.5 million in settlements related to allegations of kickbacks for prescribing the painkiller Kadian. Overall, accusations of marketing fraud and kickbacks have cost the industry $6.5 billion since 2008
The review of these cases found no instances of doctors facing serious sanctions or even professional discipline. Since 2008, federal investigations into kickbacks and illegal marketing have identified 75 doctors who allegedly participated. None received any sort of monetary or other criminal penalty. Few state medical boards conducted investigations into the doctors’ conduct. Many of the doctors allegedly involved say they have been unfairly labeled as key players in these schemes, when in fact they also rely on the drug companies for information on potential uses of their products. Still, doctors should approach any off-label use (i.e. any use not explicitly approved by the FDA) with caution.

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A study conducted by the Poughkeepsie Journal has found that the state of New York has only succeeded twice in twenty attempts since 2007 to fire employees at local state-run facilities that care for the developmentally disabled. The Journal reviewed 1,900 pages of documents relating to disciplinary proceedings for 98 group homes and 6 institutions throughout the state. It found that only two percent of disciplinary actions since 2007, eight out of 341, resulted in firing, even in cases involving serious allegations of neglect or abuse.

Examples from the study of people who kept their jobs included a female staffer who held a patient by the hair and, while jabbing the patient in the face and yelling obscenities, forced the patient to drink an unknown liquid. Another case involved an aide who held a patient down on the ground by kneeling on the patient’s back and grabbing at the patient’s face, and who then tried to coerce a coworker into altering the report. That worker faced an assault charge in criminal court.

Not all workers involved in these cases actually remained at their facilities. The study found that many accepted resignation or unpaid suspensions, which keeps them on the payroll and has far less public impact than outright termination. It also allows for the possibility that individuals with disciplinary history, which might include abuse and neglect, may be able to obtain employment in homes for the developmentally disabled again in the future.

This situation in New York state underscores the importance of remaining educated about nursing homes, assisted living facilities, and other group care facilities to which you might entrust a loved one. These facilities clearly have an obligation to provide diligent and competent care, since they provide nearly all the daily needs of the residents.

In Maryland, facilities caring for people with developmental disabilities, which may include autism or Down syndrome, are regulated by the Developmental Disabilities Administration. It is part of the Office of Health Care Quality in the Maryland Department of Health & Mental Hygiene. Regulatory compliance is handled by the Developmental Disabilities Unit, which has established a system for complaints regarding misconduct in regulated facilities. Facilities providing full-time care to people with developmental disabilities must be licensed by the state, and reports of abuse, neglect, or misconduct certainly factor into licensing decisions.

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