Consumer Health Digest #10-06

Your Weekly Update of News and Reviews
February 12, 2010

Consumer Health Digest is a free weekly e-mail newsletter edited by Stephen Barrett, M.D., with help from William M. London, Ed.D., M.P.H. It summarizes scientific reports; legislative developments; enforcement actions; news reports; Web site evaluations; recommended and nonrecommended books; and other information relevant to consumer protection and consumer decision-making.

Class-action suit filed against abusive dental chain. A class-action suit has been filed against FORBA Holdings, LLC, several related companies, and as-yet-unnamed dentists who have operated "Small Smiles" and related clinics in 23 states. FORBA operates the largest chain of dental clinics that serve children on Medicaid. The complaint charges:

• The defendants conspired to perform unnecessary procedures and use unnecessary physical restraints upon children in order to fraudulently obtain extra compensation.
• At least 300,000 children may have been treated improperly.
• Medicaid-eligible children would have an appointment for a routine check-up and cleaning with Defendants’ clinics. They would be given x-rays, a cleaning and then the dentist would evaluate the child’s mouth.
• The x-rays were often unnecessary, taken incorrectly, taken by employees not licensed to operate the x-ray machine, and/or unreadable or even blank.
• Parents/guardians were then brought to a consultation room where they were told that their child needed extensive work including, pulpotomies and steel crowns.
• Parents were pressured to sign consent forms immediately so that the extensive procedures could be done the same day as the initial consultation. Defendants thought that if the patients left the building, the might obtain a second opinion about the need for additional procedures and might not return.
• FORBA also encouraged its clinics to use of a “papoose board” to immobilize the children, regardless of whether or not restraint was necessary.
• Parents were not permitted to observe their children's' treatment.
• FORBA’s clinics were ordered to clean the children as much as possible before sending them back to their parents, including washing their clothes so that the parents would not find out that the children had urinated or vomited on themselves.

The FORBA story may be the most egregious patient abuse ever reported. To date, FORBA has agreed to pay $36.8 million to settle three government actions that alleged fraudulent Medicaid billings. The unnecessary work included multiple stainless steel caps and and as many as 16 pulpotomies ("baby root canals") given in one sitting. ABC-TV's "20/20" has vividly demonstrated the abuse to which many of the children were subjected. At least 15 dentists who worked for FORBA have been disciplined, but many more should be. Dental Watch has a detailed report.

Prosecution of whistleblower nurses fails. An attempt to prosecute two nurses who complained that a doctor was trying to sell herbal products to his hospital clinic patients has failed. [Barrett S. Outrageous whistleblower prosecution fails. Quackwatch, Feb 11, 2010] In a bizarre case that has drawn national attention, Anne Mitchell and Vickilyn Galle were charged with "misuse of official information," which is a third-degree felony under Texas law. The nurses, who worked at Winkler County Memorial Hospital had complained that Rolando G. Arafiles, M.D. was trying to sell herbal products to patients whom he had seen at his hospital's clinic. In April 2009, the Board notified Arafiles that he was being investigated and asked for several medical records. After receiving the board's notice, Arafiles asked his local sheriff to find out who had made the complaint. The nurses had complained anonymously, but information supplied by the board enabled the sheriff to figure out who they were. Subsequently, even though federal laws protect whistleblowers, the hospital fired the nurses and the district attorney was able to persuade a grand jury to indict them. The Texas Medical Board and the American Nurses Association complained that the prosecution is improper. Mitchell and Galle have filed suit in federal court alleging not only illegal retaliation for patient advocacy activities, but also civil rights and due process violations. The defendants include Winkler County, the hospital administrator, Arafiles, the district attorney, the county attorney, and the sheriff. Their suit also alleges that Arafiles was the sheriff's doctor and that they were associates in the herbal business. Last month, the prosecutor dropped the charges against Galle with no public explanation. This week, after a 4-day trial, a jury took just one hour to acquit Mitchell. [Sack K. Whistle-blowing nurse is acquitted in Texas. New York Times, Feb 11, 2010] The nurses' civil suit continues.

Judge makes criminal contempt ruling against Kevin Trudeau. Infomercial scammer Kevin Trudeau was found in criminal contempt for asking his supporters to e-mail the judge who is presiding over a civil contempt case brought by the Federal Trade Commission. In September 2007, the FTC asked the Illinois Federal Court to hold Trudeau in contempt for violating a previous consent agreement by misrepresenting the contents of his weight-loss book. The court did so, banned Trudeau, for three years, from involvement in any infomercials for publications in which he has a financial interest, and ordered him to disgorge $5,173,000, which the judge described as conservative estimate of the royalties realized from sales through infomercials. Three months later, the judge (Robert Gettleman) raised the amount to $37,616,161, which he said was a reasonable approximation of the loss consumers suffered as a result of Trudeau’s deceptive infomercials. In 2009, the U.S. Court of Appeals upheld the contempt ruling but ordered Gettelman to reevaluate the penalties. The Chicago Tribune reported that Gettleman was deluged with hundreds of e-mails after Trudeau posted a message on his Web site saying "Kevin needs your voice." The posting went on to ask supporters to e-mail Gettleman, listed the judge’s e-mail address, and asked that followers tell the judge how Trudeau had improved their lives. Gettleman said that his e-mail and BlackBerry were "literally clogged" with messages—some from people who were angry and others who "said they are watching," a vaguely threatening note that prompted him to ask the U.S. Marshal Service in Chicago to assess if any of the messages amounted to a threat. Gettleman can jail Trudeau for up to six months and issue a fine, but he said he wanted to take some time to think about what would be appropriate. [Coen J. Infomercial pitchman held in contempt for encouraging e-mail attack on judge. Chicago Tribune, Feb 12, 2010]

This page was posted on February 13, 2010.