Johnson City oncologist seeks to have fake drugs lawsuit dismissed

Becky Campbell • Jul 24, 2012 at 7:01 AM

A local oncologist asked a federal judge to dismiss a federal lawsuit that claims fake drugs were used to treat a woman who ultimately died from the disease.

The lawsuit against Dr. William Kincaid and McLeod Cancer and Blood Center, East Tennessee Hematology-Oncology PC — filed on behalf of Ernest Lane Tribble by his attorney Wendal Jackson, of Bristol — asserts Kincaid administered medications “represented to be chemotherapy drugs” to Tribble’s wife.

In a motion filed by attorney Charles Herndon for Kincaid, the lawsuit failed to state a claim or basis their client did anything wrong and the federal court doesn’t have jurisdiction in the matter.

In an answer to that motion, Jackson stated that Kincaid’s attorney “misses the point. This is not a medical malpractice case. It is a federal case brought under federal law for medical fraud.”

Jackson cited a federal law provision that defines health fraud as the “deceptive promotion, advertisement, distribution or sales of articles … that are represented as being effective to diagnose, prevent, cure, treat or mitigate disease.”

In his own language, Jackson stated the case very well could lead “headlong into a medical malpractice action.”

Included with Jackson’s response to Kincaid’s motion to dismiss is a statement from a registered nurse “who has voluntarily come forth in this action.”

But the statement from Kelly Jo Howard, who states she worked 10 years as an oncology nurse at the Johnson City Medical Center, makes no mention of Kincaid, the McLeod center or any actions of the doctor or policies of the center.

Instead, Howard talks about the “professional standards of care in administering chemotherapy,” and that she was directly involved in administering chemotherapy to cancer patients.

“The standards of care in Johnson City, Tennessee for nurses administering chemotherapy require that an R.N. examine the drug from the pharmacy for FDA approval, to make sure that the drug is precisely what has been ordered, and to use what knowledge we have as nurses to verify that it is appropriate. We are the patient’s last line of defense,” she wrote in the statement.

“Then, another R.N. has to go through the same process and to verify that what the original R.N. has signed off on is accurate in every respect,” Howard said.

A spokesman for the cancer center said there is no basis for the suit and the fake drugs identified by the Food and Drug Administration were never located there.

The FDA “confirmed to us the Avastin at the McLeod Center” was not part of the batch that was fake, Tony Treadway, spokesman for McLeod, said last week.

Federal investigators found information that Montana Heathcare Solutions sold Avastin to 80 clinics in the United States. Some vials apparently contained a liquid with no cancer-fighting ingredients.

The FDA sent letters to those clinics, including McLeod, alerting them of the potential danger.

“Two subsequent visits to the McLeod clinic by (an) FDA representative found that the chemotherapy drug in the clinic’s inventory purchased from the supplier was not fake and there has been no subsequent report from the FDA that any of the medications from the supplier were either fake or ineffective in the treatment of the diseases they were intended for treatment of various cancers,” Treadway said.

“The clinic handed over all the medication it had that was purchased from Montana Healthcare Solutions,” Treadway said.

He also said the letter McLeod received did not claim the clinic actually purchased the fake drug, only that Montana had sold the fake drug to some of its customers.

The FDA conducted an investigation at McLeod earlier this year.

Wanda Ruth Tribble died in November. Prior to that time — there was no specific date in the suit — she was diagnosed with breast cancer and under the care of Kincaid, who practices at McLeod Cancer and Blood Center.

The lawsuit does not name the chemotherapy drugs Wanda Tribble was given, but it claims “they were harmful. Her life could have been saved with proper drugs, or at least prolonged,” the lawsuit states.

Tribble is asking for $10 million in compensatory damages and $1 in punitive damages.

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