Malpractice case dismissed against Talley



Star Staff Writer RUTHERFORDTON — The medical malpractice case against Dr. Joseph Talley was dismissed Tuesday, moments before jury selection was scheduled to begin.

Attorneys representing Sheila Bailey, whose husband, David Bailey, died in 2000 of a drug overdose, filed the motion for dismissal. The dismissal came one day after Judge Christopher Collier ruled against several key elements of the plantiff’s case.

Bailey’s case was the first medical malpractice case to be tried against Talley since the state medical board suspended his license last year. The U.S. Drug Enforcement Administration has linked Talley, who practiced in Grover for nearly 30 years, to 23 deaths.

Talley was a pain specialist who treated patients from the area and from other states, sometimes over the phone.

“We’re disappointed,” Talley’s chief lawyer Bob Clay said. “The doctor wants to be vindicated. We were all prepared to go to trial.”

Even with the dismissal, Mrs. Bailey’s case continues. Clay said he plans to file a motion that would seek attorneys’ fees to be paid for by the plaintiffs. Also, Mrs. Bailey’s attorneys, Deborah Casey and Troy Stafford, can refile the case within a year.

Stafford said they intend to refile the case at some point. Mrs. Casey said she did not know when that would occur.

Mrs. Casey did say the plaintiffs would attempt to show that Talley knew Bailey could not take the amount of narcotics prescribed. She alleges that Talley prescribed more than 2,000 pills to Bailey before his death.

“We do look forward to allowing Mrs. Bailey and her family to have their day in court,” Mrs. Casey said.

Mrs. Casey and Stafford both said the dismissal was a result of the outcome of Monday’s motions hearing.

During the hearing, the defense won a key motion that separated the trial into two parts — one for compensatory damages and one for punitive damages. Stafford argued that separating the trial would prevent expert witnesses from appearing.

Collier also ruled during the hearing that documents relating to the state medical board and the DEA’s findings against Talley would not be allowed. Those pieces of evidence, Collier said, would prejudice the jury.

A videotape filmed by Mrs. Bailey allegedly showing her husband under the influence of prescribed narcotics also was not allowed.

“We decided it would be a better case to dismiss and refile it and try it when we had all of our experts available and the public information about the state medical board suspending Dr. Talley’s license would be allowed,” Stafford said.

The dismissal in the Bailey case comes as four other medical malpractice cases against Talley are still in the preliminary stages.

Gastonia attorney Joe Roberts, the chief attorney for the other four cases, said Tuesday’s dismissal would not have an impact on his cases. Roberts has medical malpractice cases on file against Talley in Cleveland, Gaston and Rutherford counties.

“Each individual case has to rest on its own merits,” Roberts said. “I was very much interested in the trial outcome of the other cases.”

Trial dates have not been set in any of the four cases. A trial date could be scheduled in Gaston County as early as next summer, Roberts said. The two other cases likely would follow in three-month gaps, he said.

Clay, Talley’s attorney, said the dismissal would not help the other cases against Talley.

“It should make the attorneys a little less happy about their case,” Clay said.




An Update On Dr. Talley
June 2003

From Dr. Hochman NFTP

Original

In the cases of Dr. Erickson in Albuquerque, Dr. Maynard in Dallas, Dr. Edwin in llinois, I can only speculate, as I have no personal knowledge of the cases.

However, in Dr. Joseph Talley's case I have personally reviewed all 14 cases for which he has been accused on impropriety.

I am prepared to give tesitmony on all that he conformed to the standards of care and record-keeping and that he was not involved in any criminal activity. Instead, the case records clearly reflect the efforts of a well-intended, legitimate physicians seeking to relieve suffering.

It is pharmacological McCarthyism, plain and simple, and our own government is behind it. 'Witch-Hunting' in the 21st cenbtury. What a disgrace.

Below is Dr. Talley's update.

J..H.


Joel,

Still in limbo, waiting for the feds to take their shot, one day optimistic, then three days looking for Super-Saver Fares to Brazil.

Some say my case may be giving them some problems, others say they're just waiting to pile up a few more busts on my former patients or learn of one or two more who died (any cause) while on my prescriptions. From what I can gather from the Deborah Bordeaux case, all they need is some witnesses to admit they sold medications that they got from me; they don't even have to bother with lying that I somehow knew.

My best guess is that they will be loathe to have invested as much as they have inveestigating me and come away with nothing, so they will finally throw 20 1st degree murder charges at me, so as to avoid me making bail, freeze the funds to preclude adequate counsel, figuring to spook me into copping a few manslaughter or reckless homicide charges. But who knows?

Meanwhile, playing my Tuba, making sawdust in the shop, hunting my reptiles, occasionally emitting an intemperate blast on the Net, and fantasizing about founding an organization I would call the Talley-ban!

Again, thanks ever so much for your help, interest, and example.

Sincerely,
Joe T.





DOCTOR WELCOMES NATIONAL LOOK AT PAIN TREATMENT



GROVER - Grover physician Joseph Talley, who lost his license to practice medicine in April, was featured on Monday night's CBS Evening News. The story in the "Eye on America" segment centered on the debate in the medical community over how pain medications are prescribed. Since the decision by the N.C. Medical Board, Talley has continued helping his patients find other doctors who can treat their chronic pain. But he still faces accusations from the federal Drug Enforcement Administration linking him to the overdose deaths of 23 patients. He is also being investigated in South Carolina in the deaths of 12 patients.

Earlier this year, the DEA suspended Talley's privileges to write prescriptions for controlled substances. Talley said the DEA show cause hearing was canceled after he lost his medical license and the right to prescribe. "I was never, ever given the opportunity to defend myself." Talley said it's possible he could be indicted at any time by the DEA in connection with the deaths.

DEA spokeswoman Rogene Waite did not return a call seeking comment about the case.

Talley, 65, can ask for reinstatement of his medical license in April. "If I'm a free man and able to do so, I will apply," Talley said about getting back that license.

Talley spent part of the day Monday talking to a lupus patient who is having trouble finding a new doctor. He said some physicians are fearful of the drugs involved and government regulators, including the DEA. Talley said the CBS interview "was basically about the plight of pain control itself, the principles of why you give them narcotics, why you don't and the dilemma that the doctor faces."

The interview included a tour of Talley's toy workshop and his collection of snakes. "They'll have me and, I think, one of my patients on there," Talley said about the interview, adding that he will take advantage of every opportunity to educate the public about pain treatment. "I would give my eye teeth to have the general public to just actually know all of the hard-core facts," said Talley. The embattled doctor said his fate could ultimately depend on the perceptions of the public and a jury. Talley said he continues working 10- to 12-hour days, most of that time spent copying charts and making calls. He also busies himself sorting through charts the DEA had seized and writing about his recent experiences.

Talley said writing has helped spark his memory about events as they've happened. One misconception, he said, is that Oxycontin is a new drug. According to Talley, it's just a higher dosage version of Oxycodone, which has been around for 30 years. He said it is difficult living with the knowledge that the DEA could come in at any time. "It's bad at times," he said. "It's been real discouraging from time to time, but I have no choice."





DR. TALLEY INVESTIGATION HANGS IN LIMBO


In December 2001, one doctor in one obscure little Cleveland County town hit the big time, publicity-wise, when the federal Drug Enforcement Administration focused its "war on drugs" lens on his tiny office in Grover.

Dr. Joseph Talley had long been the subject of controversy, the target of inquiries from state medical board members and one of the most sought-after prescribers of painkilling narcotics not only in the region, but across the country. Talley said his following flocked to him for help they could get nowhere else. Skeptical authorities said they came to get powerful drugs, such as Oxycontin, he dispensed too freely.

Scarcely a year later, the 65-year-old self-styled specialist in chronic, intractable pain, had his prescribing rights pulled in January by the DEA. He also lost his medical license, stripped of it in March by N.C. Medical Board members who said he failed to follow established procedures and do proper follow-up care.

He has no practice, saying he has spent countless hours begging other doctors to take patients who had come to him saying he was their only hope. And, he says, he has little hope of recovering either the license or the practice. Retreating to his woodworking shop where he handcarves trains and other moving "toys," he waits.

Will federal charges, criminal charges, be filed against him? Will he be tried, found guilty and go to prison?

As early as 1998, Talley wrote to the chairman of the N.C. Medical Board complaint committee that this is "a showdown that needs to happen."

"What will happen to me is happening all across the country," Talley said recently, "with perversion of justice on a scale that borders on the unbelievable. The result is that all doctors who care about pain are pulling back or getting out."

He cites examples, and several of them have been the subjects of national news coverage:

"Dr. Ben Moore, whom I knew, completely bankrupted by legal fees and still facing prison, hung himself in his mother's back yard.

"Dr. Maier, pain specialist in Goldsboro who reviewed my records, is quitting himself because of the danger and going to work in an Indian reservation," he said.

Others, too - Dr. William Hurwitz of Virginia, Dr. Robert Weitzel of Utah, Dr. Frank Fisher of California, Dr. Strachan of Virginia, Dr. Cecil Knox in Roanoke - are quitting, he said.

One Virginia news editor called the investigations of doctors such as Talley "war crimes against patients." A pro-and-con series published in The Star last spring ran the gamut from testimonies to diatribes. Some patients pleaded with authorities to leave Talley alone and let him continue to help them, while others said his liberal prescribing practices had ruined their lives or killed their loved ones.

Federal investigators will not comment on their investigation.

Talley said he has no idea when any results will be announced. "They'll just show up at the door one day," he said.

One of his attorneys, Lyle Yurko, told The Star that doctors, patients and law enforcement are not the only players in the game. "It is impossible to talk about drug policy in a neutral, detached way," Yurko said, "and it's very difficult to have a rational discussion about these issues. There are some things that the feds do that are just crazy.

"There has been created an anti-controlled substance industrial complex - whole hosts of industries that are dependent on drugs being hard to get - and it's a juggernaut that's very hard to stop."









How alike are OxyContin cases?



Date: 2/22/02 - Luann Laubscher Star Staff Writer

SHELBY - Dr. Joseph Talley said he did not sleep well the night he got the news that pain doctor Dr. James Graves had been convicted on four counts of manslaughter in a Florida court.

Graves will be sentenced on March 19 and faces 165 years in prison if the judge gives him the maximum sentence. He was convicted of manslaughter for prescribing the painkiller OxyContin - and other narcotics - that led to the overdose deaths of four patients. Graves is the first physician in the nation to be convicted of such charges. Dr. Talley acknowledged similarities between his prescribing practices and Dr. Graves'. "This is one more Joe that had compassion for people and is paying for it," Talley said. "Our practices are a lot alike. I hope his records were terrible or something."

OxyContin and Xanax were the drugs most often prescribed by both self-appointed pain doctors. Both doctors say they would listen to patients describe their pain, and prescribe pills with no other modality of pain management offered. And according to Dr. Talley, his wife and Alicia Graves, Dr. Graves' wife, chat on the Internet almost nightly. However, similarities between the two doctors seem to end there.

The Florida Department of Law Enforcement started investigating Dr. Graves in mid-1999. The investigation led to Graves being charged with four counts of criminal manslaughter, unlawful delivery and racketeering. The federal Drug Enforcement Agency was not involved in the investigation.

The DEA issued Dr. Talley an "order to show cause" on Jan. 28. The DEA revoked Talley's DEA Certificate of Registration, which prohibits him from prescribing narcotics. According to the DEA, Talley prescribed excessive amounts of controlled substances such as OxyContin and Methadone, which may have led to the deaths of 23 patients. Graves received a trial by jury. Dr. Talley's future is in the hands of the U.S. Attorney General. Talley also has to appear before the N.C. Medical Board in March to try to keep his license to practice medicine in the state.

Dr. Graves kept his DEA number and prescribed narcotics until the start of his trial six weeks ago. According to reports from the trial, Dr. Graves took in an estimated $500,000 a year at his office on U.S. 90, in Milton, Fla. The office opened in Sept. 1998 and closed in July 2000 after Graves was arrested.

Dr. Talley came to Grover in 1969, and has been practicing medicine in the small mill town since then. Talley's financial statements have not been made public.

Two dozen pharmacists testified during the Graves trial that they became concerned and started warning some of Graves' patients that they could die from the combination of drugs they were taking. By the end of 1999 many pharmacies stopped filling prescriptions written by Dr. Graves.

Medi-Fare Pharmacy sits in a trailer behind Dr. Talley's office, and most patients have their prescriptions filled there. Talley said he has never had a financial interest in Medi-Fare. "No interest, no ownership," Talley said.

Billy Wease, owner of Medi-Fare, says he is the largest retailer of OxyContin in the U.S. and Dr. Talley once wrote the most prescriptions for the drug.

During Graves' trial investigators said that his patients came forward on their own and released their medical records to them. "Some of them had friends who were dying," Special Agent Dennis Norred of the Florida Department of Law Enforcement, said in a court report, "They wanted to help the investigation."

Dr. Talley has received a mix of support and blame from patients and family members of those he treated. There has been no indication that any of his patients went to the DEA.

The Associated Press contributed to this report.

You can e-mail reporter Luann Laubscher at [email protected], or call her at (704) 484-7000, ext. 120.



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