Doctors Avoid Penalties in Suits Against Medical Firms
by Tracy Weber and Charles Ornstein
Evidence sealed at settlement
For concerned outsiders, the whistle-blower suits are often troublingly vague. Many don\’t provide enough specifics about physicians\’ roles to assess their veracity. Some offer only worrisome hints of doctors\’ misconduct.
But the case against Lilly and Florida psychiatrist George Jerusalem, unsealed in 2009, was rich with detailed allegations.
While purportedly receiving money and gifts from Lilly from 2001 to 2003, Jerusalem favored its antipsychotic Zyprexa, according to a case filed in federal court in Pennsylvania by a former Lilly sales representative.
Jerusalem was a consulting psychiatrist at more than 100 nursing homes in Florida\’s panhandle, treating 3,000 to 5,000 residents. He allegedly prescribed more than $1 million worth of Zyprexa a year to them even though it was known to be potentially dangerous for older patients, according to the lawsuit.
Jerusalem had a change of heart, the suit said, when Lilly balked at hiring his son as a sales rep.
\”As he had threatened, Dr. Jerusalem retaliated by immediately starting to switch his thousands of patients from Zyprexa\” to a competitor\’s drug, the suit said. Sales of Zyprexa among Jerusalem\’s patients plummeted by 33 percent in one month, the lawsuit alleged.
Jerusalem did not return calls seeking comment. His wife, Tessie, who was also named as a defendant, said the accusations in the suit about trading prescriptions for favors are \”not true.\”
Tessie Jerusalem, who managed his home office, said her husband gave only a few talks about Zyprexa over the years. If Woodward \”can prove that Dr. Jerusalem made $50,000 from the company, oh my goodness,\” she said. \”Where did he get that amount is beyond me.\”
Lilly settled this and three similar suits for $1.4 billion in 2009 and pleaded guilty to a misdemeanor charge for promoting Zyprexa in elderly populations as a treatment for dementia. Although Jerusalem was named as a defendant, the case against him was dropped when Lilly settled and there was no response from him in the court file. His case shows how hard it is for outsiders to get to the bottom of such allegations.
Once the Justice Department joins a case like this one, government lawyers have access to any evidence the whistle-blower brings. With their subpoena power, they also can secure patients\’ medical records, a breakdown of the drugs prescribed and a listing of a company\’s payments to physicians.
When a case is settled, however, any evidence typically remains confidential, is sealed or even returned to the drug company. The public is effectively left in the dark.
ProPublica\’s effort to substantiate the allegations against Jerusalem was inconclusive. Reporters sought Medicaid-prescribing data from Florida for Jerusalem. Those records show he had prescribed only a small amount of antipsychotics during 2003.
But the data might not reveal his true impact on the prescriptions of his patients. State records showed he had treated at least 1,557 patients enrolled in both Medicare and Medicaid (mostly nursing home residents) in 2003 alone.
It is common for consulting psychiatrists such as Jerusalem to recommend drugs for patients, while the actual prescriptions are then written by physicians who work as medical directors for the nursing homes. Assessing the allegations against Jerusalem would require a review of confidential patient medical records to show that he recommended a drug that was later prescribed by another doctor.
Prosecutors could conduct such a review with a subpoena, but federal patient privacy laws would shield the records from reporters.
Asked for substantiation, lawyers for whistle-blower Steven Woodward said his claims were based on memory because he wasn\’t allowed to take his records when he was fired. They said the government found him to be a trustworthy source. Woodward did not return calls for comment.
Two government lawyers involved in the case wouldn\’t comment on it but said the Justice Department typically focuses on whether the allegations in a suit support a pattern of behavior by the company. The department does not vouch for whistle-blowers\’ specific claims about individual doctors.
Brian Kenney, Woodward\’s attorney, said he pushed prosecutors to pursue the psychiatrist because his conduct was \”egregious,\” but they were not interested.
\”Dr. Jerusalem\’s conduct is tantamount to elder abuse,\” the suit alleged.