Sunday, November 5, 2017

Anna Nicole Smith in Work Comp News

In 2007, Anna Nicole Smith was found dead in a Florida hotel. She was a high-profile Hollywood figure, whose life and death were chronicled in the American tabloid tradition. Her overdose made news, as did virtually every other aspect of her personal life, a tabloid feeding-frenzy. 

ABC News reported that Ms. Smith died from “the combined effects of nine different prescription drugs.” Though each was “present in levels lower than what would normally lead to overdose,” the “combination of the medications led to a toxic, and ultimately lethal, effect.” The offending chemicals included chloral hydrate, Klonopin, Valium, and Atavan, reportedly for the treatment of depression. There was also evidence of Benadryl, Tamiflu, Topamax, methadone, acetaminophen, and a variety of nutritional supplements. 

ABC noted that the presence of chloral hydrate was notable because its use had become rare. So rare, that one expert believed it would be difficult to obtain at many pharmacies. The drug had earlier enjoyed popularity, and “infamy as the notorious ‘Mickey Finn’ -- a drug that could be dropped into an alcoholic beverage in order to cause someone to lose consciousness.” But the drug had become antiquated and uncommon in the United States. 

The Daily Mail reported that Ms. Smith’s psychiatrist in California was “convicted of fraudulently obtaining drugs for Anna Nicole Smith,” and that resulted in a 90 day revocation of her medical licence. Dr Khristine Eroshevich initially “faced 11 charges involving drug prescriptions that were given to her patient.” The doctor was reportedly “initially convicted of two felonies” regarding prescriptions for Ms. Smith.” However the Daily Mail reported that “one charge was later thrown out and the other was reduced to a less serious misdemeanor status.”

And thereafter, Ms. Smith’s life and death faded from the front pages. But, Ms. Smith and Dr. Eroshevich made news again in October 2017 when WorkCompCentral reported Dr. Eroshevich has filed a federal case challenging her suspension from the California workers’ compensation system. In California, physicians can be banned from participating in the workers' compensation system, banned from treating injured workers. But, doctors that are banned in any state, may simply move to another.

Dr. Eroshevich has instead decided to fight her exclusion. She contends that the process which led to her suspension from the workers’ compensation system is unconstitutional. She contends that the “suspension is ‘wrong and inaccurate, and is capricious and arbitrary.’” Her conviction in the Smith case led to her being disqualified from providing treatment under the California Medicaid program, called Medi-Cal. 

That Medicaid disqualification in turn led to the notification of proposed suspension of privileges in the workers’ compensation system under Labor Code Section 139.21. That 2017 law is not permissive, but rather “requires the division to suspend providers who have been convicted of a felony or misdemeanor involving fraud or abuse of the a health care program, or who those have been suspended from participating in Medicare or Medicaid because of fraud or abuse.”

Dr. Eroshevich argues that Medi-Cal did not exclude her for fraud or abuse, but for only “the since-dismissed convictions.” Presumably, prescribing medication under false names for a celebrity that thereafter died would not be in the doctor's definition of "abuse." She was convicted of “conspiring to unlawfully prescribe controlled substances” to Ms. Smith, but a judge later “set aside the guilty verdict.”

This judicial erasure of the criminal conviction was apparently an exercise of discretion available to a California court when a “defendant has fulfilled the conditions of probation, or the court thinks it is ‘in the interest of justice’ to enter a plea of not guilty and set aside a verdict of guilty.” So, as a result of this later judicial pardon, the guilty verdict was set-aside, and the accusation of criminal activity in Ms. Smith’s death was judicially erased. There are likely some who struggle with understanding how convictions disappear in our legal system. 

Dr. Eroshevich alleges that she has applied to resume treating Medi-Cal patients. She says that “if that application is approved, it would eliminate the only other justification for her proposed suspension from California’s workers’ compensation system.” She complains that a workers’ compensation suspension based on the Medi-Cal suspension would violate her right to due process. 

WorkCompCentral noted that Dr. Eroshevich also previously faced allegations of misrepresenting the facts surrounding her interaction with a particular workers’ compensation patient. This involved her preparation of a “report indicating she examined the patient,” which contradicted allegations that she never met “the injured worker face-to-face.” The California Medical Board also alleged that Dr. Eroshevich nonetheless billed for the “time spent interviewing the injured worker.” While those allegations may seem troubling, there is no indication that the doctor was convicted of the allegations. While those allegations were raised, there was not apparently any conviction that resulted. 

Dr. Eroshevich also complains that suspension under Section 139.21 would exclude her from treating workers’ compensation patients permanently. She contends that there is no provision in the law to allow her to have that suspension reviewed or reversed, which she says “actually creates a ‘termination process,’ not a suspension process.” To some, that may seem a mere word game, but there is some potential that a judge would see such parsing persuasive. 

When those convicted of criminal activity can successfully have their convictions erased, as California apparently does, it is perhaps difficult to understand how some civil process could nonetheless impose sanctions for behavior. If a criminal conviction results in no permanent penalty, Dr. Eroshevich appears to question the constitutionality of a civil suspension that would carry permanent consequences. And, some will argue that if the legislature intended suspension of doctors who lack criminal conviction, the statute could have been phrased to have that effect. It is the legislature's job to make the law

The story raises issues worthy of discussion. Should those who are not eligible to treat in a system like Medicaid continue to treat injured workers? Should criminal penalties for behavior be permanent, or subject to erasure? If there is to be a judicial pardon process, will there be any assurance that its benefits will be equally available to all convicts regardless of means and position? I am wondering how often this erasure process is engaged by non-professionals with access to expensive attorneys? Should there be state tolerance of prescription issues in the midst of America's overdose epidemic?