Trouble Piles Up for Convicted Hospice Doctor

     (CN) – A hospice medical director who overprescribed narcotics to undeserving patients now faces a stack of lawsuits from grieving families while his insurer denies liability.
     Donna Groomes led the charge against Dr. Oliver Herndon in a January 2013 complaint for fraud and wrongful death. The lawsuit notes that Herndon is serving 11 years in federal prison, having pleaded guilty in the face of charges that he prescribed narcotics “outside the usual course of professional practice and not for a legitimate medical purpose.”
     Though hospice care is specifically intended for terminal patients with six months or less left to live, Groomes said testing on her husband, Tony, after 32 months in the Dr. Herndon’s care, showed that he did not have any terminal illnesses.
     Herndon had allegedly been treating Tony Groomes for end-stage congestive heart failure from 2005 to 2010 at Horizons Hospice, but discharged the man when his Medicaid ran out.
     Though Tony Groomes left hospice care with no trace of heart failure, he had developed a “severe and disabling drug dependency from which he did not and could not recover,” according to the complaint in the Allegheny County Court of Common Pleas.
     Herndon and Horizons “overprescribed in inordinate and unusual combinations of narcotics and other agents for Mr. Groomes,” according to the complaint. “Defendant improperly increased dosages of Mr. Groomes pain medications and other controlled substances in inordinate amounts without justification.”
     United National Specialty Insurance Co. sued Herndon, Horizons and Groomes for an injunction last week in the same court.
     “Under the terms, provisions, definitions, exclusions, conditions and limitations of the United National policies, United National has no duty to indemnify Dr. Herndon or Horizons in connection with the Groomes suit,” the complaint states.
     “As set forth above, there is no possibility of coverage under the United National policies for the claims asserted in the Groomes suit and, thus, United National has no duty to indemnify Dr. Herndon or Horizons for any of the claims asserted in the Groomes suit.
     “Accordingly, United National is entitled to a declaration that it has no duty to indemnify Dr. Herndon or Horizons in connection with the Groomes suit.”
     United National says Herndon convictions are tied to his unlawful distribution of “oxycodone and … oxymorphone, Schedule II controlled substances.”
     The Drug Enforcement Administration caught Herndon during its 2011 investigation into tips from multiple Pittsburgh-area pharmacies regarding a high-volume of pain killer prescriptions.
     In addition to the 135-month sentence, Herndon was also sentenced to repay $700,000 to UPMC for You and Gateway Health, the insurance companies that paid out the most for his prescriptions written for painkillers oxycodone and oxymorphone.
     Assistant U.S. Attorney Stephen Kaufman had said “Herndon’s prescriptions flooded the streets with so many pills that the street price for a single oxycodone tablet jumped to $40, from $20 or $30 each, depending on the location, after his arrest,” Pittsburgh’s WTAE reported.
     United National cites various news reports in its complaint, seeking to prove Herndon and the hospice are not eligible for coverage because of exclusions for criminal acts or injury arising from prescribing drugs.
     In addition to the Groomes lawsuit, Herndon has also been named as a defendant in two other complaints by families of deceased former patients.
     In one filed last month, the parents of 23-year-old Ira Gray Jr. said Herndon “negligently and recklessly prescribed [their son] … unnecessary and/or dangerous amounts of oxycodone and other medications.”
     Gray was found in cardiac arrest six months into treatment with Herndon.
     Janice Holan and her three daughters filed similar allegations on the same day as United’s action last week. Their action also names as defendants Donna Walters, R.N., and Hotizons Hospice CEO John Rezk.
     While dyspnea, a shortness of breath linked to his end-stage pulmonary disease, had ravaged Robert Holan, Herndon and Horizons Hospice failed to provide him with a standard emergency care kit that would ease his pain, the family says.
     Herndon had allegedly told the nurse on duty “not to bother him with emergency calls,” but the nurse was “very upset” for Holan’s condition, according to the complaint.
     Unable to reach a doctor who could get Holan a kit, “the nurse then left Robert Holan, who was choking, coughing and aspirating, stating, ‘I’m so sorry, I can’t do anything,'” the family claims.
     Robert Holan died the next day.
     The hospice then allegedly cited “short staffing” in refusing to offer the Holans bereavement counseling. They also failed to provide post-mortem care, and left a Foley catheter “sticking out of Decedent’s penis with bag and tubing left on the floor,” which Holan’s wife discovered during a post-mortem bath, according to the complaint.
     Three weeks after his death, the hospice altered medical records to indicate that the family and Holan had refused a care kit, according to the complaint.
     The Groomes, Gray and Holan complaints all make various claims seeking damages against Herdon for professional negligence, survival and wrongful death. The Groomes and Holan actions also make additional claims including fraud and infliction of emotional distress.
     Pittsburgh-based attorney James Somers represents Groomes. The Gray family is represented by Harry Cohen and Todd Bowlus. Robert Davant III represents the Holans.
     United National is represented by Gale White and Kimberly Scheidt of White and Williams in Philadelphia.

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