Anger, Frustration Grow as Victims Wait

By Walter F. Roche Jr.

Though miles apart Jack Pavlekovich and Joan Peay have some experiences in common, experiences they both wish they never had.
Pavlekovich in Indiana and Peay in Tennessee were injected with a fungus loaded spinal steroid from the same rogue drug compounder. They both contracted fungal meningitis, underwent lengthy hospitalizations and debilitating treatment with powerful antifungal drugs.
And then they both got to go through it all over again after suffering lengthy and painful relapses.
Then, there's one other thing: Four years after it all began they, like nearly all other victims of the country's worst such outbreak in history, have yet to receive a penny in recompense even though well over $200 million has been amassed to pay back creditors and victims of that Massachusetts drug compounding firm,  the New England Compounding Center.
An additional $40 million has been set aside from a federal crime victims fund, but outbreak victims are learning that it may be months before they can expect to get anything from that allotment and even then there will be strings attached, strings that could force them to pay some or all of the money back.
"First we were promised payment in early 2015," said Pavlekovitch, "then it was March of 2015. Then it was March of 2016, then July, then August. It's October and still nothing."
 Peay, who was back in the hospital with a relapse a year after her original 2012 bout, says she is "ashamed" of the federal officials who added to the ongoing delays by, among other things, refusing to waive reimbursements to the Medicare program for the costs of treating victims.
"Some victims had to declare bankruptcy during these four years," Peay added.
One of those was Pavlekovitch, who said he had no choice but to declare bankruptcy as the copays and other uncovered expenses drained the family resources.
Four years ago today he was released from the hospital after his first bout on Oct. 31, 2012, but was back the next day with a blood clot.
Both Peay and Pavlekovich describe in excruciating details the painful and overwhelming after effects of the anitfungal drugs they were treated with. Hallucinations, pneumonia, loss of memory,, hearing loss.
"There were many times that month I thought I would die and didn't care, because I knew I'd be in a better place if I did," Peay said of her treatment for the 2013 relapse.
Peay and Pavlekov
ich aren't the only outbreak victims angered and frustrated over the delays.
Another Tennessee victim said he has been waiting weeks for a form that must be filled out before a promised payment can be made.
"We are so overwhelmed with debt that we'll never recover," said Jona Angst, a Michigan victim, adding that retirement and savings accounts "are gone."
"We keep being told it's coming but its the end of October and still nothing. It's shameful. Just nothing. It's a disgrace."
"Here it is the end of October and less than one percent of the victims have received a check," said Kathy Pugh, who actively campaigned for the $40 million that is now apparently logjammed. Pugh's mother was a Michigan victim of the outbreak.
Terri Lacey, who has served as a volunteer, troubleshooter and counselor to dozens of victims, said  that those victims are now faced with watching the little they can recover being eaten away.
"Unresolved litigation has resulted in the transfer of precious dwindling resources for recovery into the pockets of legal teams rather than patients.  What little funds might make their way to patients have been reclaimed by Medicare and insurance companies.  Patients will be left with little or nothing," she said.

2nd NECC Defendant Seeks Access to Civil Data

By Walter F. Roche Jr.

A second defendant in the criminal case stemming from a deadly national fungal meningitis outbreak is seeking access to sealed files amassed in hundreds of civil suits filed by victims of that same 2012 medical tragedy.
Glenn Chin, who has been charged with 25 counts of second degree murder, is asking a federal judge to grant him access to a vast repository of records gathered over the past four years for victims seeking recompense for their injuries.
Magistate Judge Jennifer Boal already has granted codefendant Barry Cadden permission to access some of the same records. Like Chin Cadden faces second degree murder charges as a result of an indictment issued in late 2013.
Boal's order issued late last month gives Cadden permission to use in the criminal case those documents from the repository he already had during the time he was a defendant in the civil cases. He was dismissed as a defendant in January.
Boal's brief order notes, however,  that the use will be subject to any restrictions imposed by the presiding judge in the criminal case.
It limits the access to documents placed in the repository on or before Jan. 8 of this year.
Federal prosecutors had strongly opposed Cadden's request and charged that he and his lawyers were trying to do an end run around the rules that govern federal criminal trials. They also warned that if Cadden was granted access, then all the other defendants would likely be given access.
In his motion filed late last week, Chin's lawyer Stephen Weymouth, asked to be given access to those same files that Cadden already has been authorized to utilize.
"Since the court has ordered access for Mr. Cadden, it is only fair, as argued by the U.S. Attorney. that access to those documents be permitted as to Mr. Chin," the motion states.
Cadden and Chin were among 14 persons indicted by a federal grand jury following a federal probe of the outbreak and the New England Compounding Center, the now defunct company which shipped fungus laden steroids to healthcare providers across the country.
The outbreak sickened 778 patients killing at least 77 of them.
Cadden and Chin are scheduled to go on trial early next year. The other remaining defendants face an April trial.
Chin's access motion was filed in the criminal case, but a parallel request is expected in the civil litigation.
Contact: wfrochejr999@gmail.com

Amendment Sought to Ease Payments to Victims

By Walter F. Roche Jr.

Citing the recently negotiated multimillion dollar settlement with a Nashville clinic, lawyers for victims of the 2012 fungal meningitis outbreak are asking a judge to modify an existing order to facilitate payments to victims treated at that Tennessee facility.
In a five-page petition filed today, plaintiffs lawyers asked U.S. District Judge Rya Zobel to give additional parties access to records of the outbreak victims treated at the Saint Thomas Outpatient Neurosurgical Center.
Stating that "additional clinic settlements have been reached with the Saint Thomas defendants," the petition states that the additional access to lien information is needed to facilitate payments from that settlement.
Currently, according to the petition, the information, which is protected under the federal Health Insurance Portability and Accountability Act, can only be accessed by the lead plaintiff attorney and the tort trustee.
The terms of the settlement with the clinic and related parties has not been made public but sources say it is in excess of $20 million
The motion was filed by Nashville attorneys Ben Gastel and Gerard Stranch and Boston attorney Thomas Sobol.
Some payments to victims have been made from the remaining balance of  a $200 million trust fund amassed in the bankruptcy of the New England Compounding Center, the company that shipped fungus infested steroids to hundreds of health care providers in some 20 states.
A total of 103 victims who were injected at the Nashville clinic have filed claims against the clinic and related parties.
Nationally 778 patients were sickened and 77 of them died in the outbreak.
Contact: wfrochejr999@gmail.com

NECC Plaintiff Attorneys Seek Fee Adjustment

By Walter F. Roche Jr.

The committee representing plaintiffs' lawyers in the fungal meningitis litigation have filed a revised fee request pushing the total sought to just under $12.5 million.
In a filing Wednesday the plaintiffs' steering committee's lead attorney, Thomas Sobol, said some fees had been inadvertently omitted from the original filing. Other increases, he wrote, were the result of the law firms submitting additional documentation or a recalculation of the amount earned.
Under the proposal about 8 percent of the total in the victims compensation fund would go to the attorneys who performed work that benefited all of the hundreds of victims of the 2012 outbreak that took the lives of 77 patients and sickened about 700 others.
According to the filing, the original petition failed to include fees to two firms that did work in the litigation stemming from the outbreak. A total of $97,717 would go to US Legal Support and $23,286 would go to Discovery Litigation.
An additional $55,000, or $5,000 apiece, would go to 11 law firms already on the list of those to be reimbursed.
Two other firms, Cohen Placitella and Roth and Leader Bulso and Nolan would have their reimbursement boosted slightly under the revised petition. Cohen Placitella would get $22,286 for expenses that were not included in the original filing while Leader Bulso would have its fees increased to $333,185 and its expenses increased to a little over $77,000.
According to several published studies fees in similar cases have ranged from 4 percent to 8 percent.
According to the petition most of the firms will have their original requests reduced by slightly under 20 percent.
Calling the changes "modest," Sobol wrote that they were nonetheless necessary "to ensure a fair and equitable distribution."
The victims' fund totaling some $200 million was amassed in the bankruptcy of the New England Compounding Center, the defunct Framingham, Mass. company blamed for the outbreak.
Contact: wfrochejr999@gmail.com

Another NECC Defendant Cleared of Some Charges

By Walter F. Roche Jr.

Another defendant in the criminal case stemming from a nationwide fungal meningitis outbreak has been cleared of some charges but she still faces an April trial on conspiracy charges.
U.S. District Judge Richard J. Stearns dismissed seven counts against Alla Stephanets of Framingham, Mass., a pharmacist who worked for the now defunct New England Compounding Center, the company blamed for the 2012 deadly outbreak.
In a brief ruling Stearns said the charges were being dismissed for the same reason he dismissed the charges against two other defendants earlier this week. He concluded that the jobs performed by Kathy Chin and Michelle Thomas, did not meet the definition of dispensing controlled substances under federal law.
All three employees were assigned to match drugs produced by NECC with patients' names prior to shipping.
Stearns noted in his brief ruling that he previously denied a motion by Stepanets to dismiss conspiracy to defraud the federal government charges which remain against her. Stepanets and seven other defendants are scheduled to go on trial on April 10 of next year.
Two other defendants, Barry Cadden and Glenn Chin, are scheduled for a Jan. 5 trial. They face 25 counts each of second degree murder, among other charges.
Kathy Chin is the wife of Glenn Chin, who was a supervising pharmacist for NECC. Cadden was chief pharmacist and part owner of the Framingham, Mass. drug compounding firm.
Two other defendants, Carla and Douglas Conigliaro, already have entered guilty pleas to vastly reduced charges and are scheduled for a Nov. 9 sentencing hearing.
NECC shipped fungus ridden steroids to health providers across the country triggering an outbreak that sickened 778 patients, killing 77 of them.
Contact: wfrochejr999@gmail.com

Two NECC Defendants Cleared of Charges

By Walter F. Roche Jr.

A federal judge has dismissed the charges against two of the pharmacists indicted in the investigation of the Massachusetts drug compounding firm blamed for a deadly nationwide fungal meningitis outbreak.
In a 12-page ruling U.S. District Judge Richard Stearns concluded that the two former NECC employees did not intend to defraud the federal government when they simply matched up drugs produced by NECC with a list of supposed patients.
Cleared of the charges were Kathy S. Chin of Canton, Mass. and Michelle Thomas of Framingham, Mass. Both were licensed pharmacists. Chin is the wife of Glenn Chin who is facing 25 counts of second degree murder stemming from the same indictment.
Glenn Chin and Barry Cadden, who faces the same second degree murder charges, are scheduled to go on trial in Stearns' courtroom on Jan. 5.
In his ruling, Stearns noted that the indictment charges that Kathy Chin and Thomas were matching up patients with two drugs, neither of which was a controlled substance. Prosecutors contended the two should have realized that the prescriptions they were working from were invalid and contained the names of fictional patients.
But, Stearns continued, the tasks the two were performing, matching up the drugs with patients' names did not meet the definition of "dispensing."
"Would a reasonable person, even a reasonable pharmacist, understand that by matching up orders to packages prior to their being shipped, she was criminally liable for participation in the filling of a prescription that she had never approved and, as a result, she was guilty of dispensing the prescribed drug with the intent to defraud. The answer as best I can determine is that she would not," Stearns wrote.
Kathy Chin had been charged under four counts and Thomas under two. All six were dismissed.
The two were among 14 indicted in late 2014 following a two year federal probe of the outbreak which sickened 778 patients, killing 77 of them.
Two other defendants, Douglas and Carla Conigliaro, recently entered guilty pleas to vastly reduced charges and are scheduled for sentencing in November.
Trial for the remaining eight are scheduled for next Spring.
Contact: wfrochejr999@gmail.com

Fund For TN Victims = $20 Million Plus

By Walter F. Roche Jr.

A still confidential settlement of suits against a Nashville, TN clinic stemming from the deadly 2012 fungal meningitis outbreak could provide more than $20 million to some 113 victims and their survivors, according to those familiar with the agreement.
That figure would make it the second highest thus far in litigation against clinics and other health care facilities where victims were injected with methylprednisolone acetate that was supposed to be sterile but was infected with a deadly fungus.
The only higher settlement, some $40 million, came in suits filed by outbreak victims against a Virginia clinic.
Some details of the settlement are becoming public as the victims who survived are marking the fourth anniversary of the first public disclosure that a deadly fungus had been unleashed on unsuspecting patients across the country.
Though it eventually turned out that the very first fatal victim of the outbreak lived in Florida, the outbreak first became public in Nashville after a Vanderbilt physician reported a highly unusual case of fungal meningitis to the Tennessee Health Department.
The settlements with the Nashville clinic and other health providers are separate from a so-called national settlement fund established in the bankruptcy of the New England Compounding Center, the company that produced and shipped the deadly drugs. That fund is providing some $120 million to $130 million to victims and some initial payments already have gone out, including to some Nashville victims.
The 2012 outbreak sickened some 778 patients across the country. At least 77 died.
The existence of a settlement with the Saint Thomas Outpatient Neurosurgical Center was first set out in a memorandum of understanding which was disclosed at a session in federal court in Boston, Mass. on July 19, but the details have never been made public.
Rebecca Climer, spokeswoman for Saint Thomas, said she could not comment on the settlement as did Chris Tardio, one of the attorneys for the clinic.
Attorneys for victims also declined to comment citing confidentiality agreements.
In their latest report to the court, attorneys for both sides said final details were being worked out, including the wording of releases victims must sign to get a share of the fund. The last court set deadline passed without any announcement or further request for an extension.
The clinic was owned in equal shares by Saint Thomas Network and the Howell Allen Clinic, also in Nashville.
Awards from the Tennessee fund are expected to be made by a method similar to that being utilized for the national settlement fund. Those funds are being parceled out on a point system based on the severity of the illness suffered.
The payments from the Nashville settlement like those from the national settlement will be subject to liens from the Medicare and Medicare programs ranging from 10 to 21.5 percent. Under Tennessee law attorneys fees will be limited to 33 percent of the amount recovered.
The same liens are being applied to the other clinic and health facility settlements.
Suits are still pending against other health care providers including two other Tennessee clinics and health providers in Maryland and several other states.

National Settlement Fund $120 million to $130 Million
High Point Settlement Fund $3.5 million (NC)
Inspira Settlement Fund $16 million (NJ)
Insight Settlement Fund $40 million. (VA)
Michigan Pain Specialists Settlement Fund $10.5 million. (MI)