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  1. Human Research Protection Programs Legal and Regulatory Issues and UCSF’s Subject Injury Program Ann Sparkman UCSF Office of Legal Affairs February 18, 2008

  2. GELSINGER CASE • Death of 18-year-old Jesse Gelsinger in study by University of Pennsylvania Institute for Gene Therapy • Gel singer v. Trustees of the University of Pennsylvania (Phil. Cnty. Ct. of C.P. filed September 18, 2000) • The study: the injection of genetic material into Jesse’s bloodstream using a viral vector • This triggered multi-organ system failure & death

  3. GELSINGER CASE • Various theories of liability against numerous parties • Named defendants: principal investigator, co-investigator, ethicist, university, sponsor • Theories: negligence, products liability, fraud, misrepresentation, assault, battery & violation of human rights • The complaint alleged that the researchers used a virus vector known to be more dangerous than other vectors because they held a patent on that particular virus vector • Allegedly, investigators and U of P had financial ties with sponsor, and this was not disclosed in informed consent

  4. GELSINGER CASE • It was later revealed that the investigator stood to benefit financially from this research • The researcher’s ties to the protocol may have jeopardized the integrity of the study • In addition, the family alleged that the investigators committed fraud by not revealing that previous subjects had died

  5. GELSINGER CASE The parties reached a confidential settlement in November 2000

  6. ROBERTSON CASE • Robertson case (Robertson v. McGee, No. 01CV00GOH(M) (N.D. Okla. Filed January 29, 2001) • In 1997, University of Oklahoma ‘s Institutional Review Board (IRB) had approved a Phase I/II cancer vaccine study for patients with melanoma • Most participants were unresponsive to standard treatment, with a 2 – 6 month prognosis

  7. ROBERTSON CASE • In 1999, the trial’s nurse coordinator advised the IRB chair regarding problems with “quality control, patient care, reporting of adverse events and adherence to study protocol.” • In 2000, the Office of Human Research Protection (OHRP) found that the IRB Chair had unilaterally approved retroactive modifications to the research protocol, and that continuing review had not been properly carried out

  8. ROBERTSON CASE • Further OHRP findings: • Due to their terminal illness, many of the subjects qualified as “vulnerable” persons, but the IRB “failed to ensure that additional safeguards were included in the study” • The consent forms (approved by the IRB) failed to adequately describe the study’s risks, and overstated foreseeable benefits • OHRP also uncovered problems around privacy and confidentiality

  9. ROBERTSON CASE • In 2001, participants in the trial filed suit • All members of the IRB who approved the study were named as defendants, a move described as “unprecedented” • While it was not unheard of for an IRB to be named in a legal action, never before had the members each been named individually • Plaintiffs’ alleged that the IRB had behaved in a negligent manner with its review and approval of the protocol

  10. ROBERTSON CASE Some of the defendants reached a settlement with the plaintiffs in July 2002

  11. ROCHE CASE • Ellen Roche was a healthy 24-year-old who died while taking part in a study to understand the cause of asthma at Johns Hopkins University • The study simulated an asthma attack • The study involved use of hexamethonium to temporarily block the nerves in the subjects’ lungs • Hexamethonium was not approved by the FDA

  12. ROCHE CASE • Per the OHRP, the IRB violated federal regulations by: • Failing to obtain adequate information to evaluate the risks of the research protocol • Bronchiolitis obliterans organizing pneumonia (BOOP) had previously been reported as a side effect of hexamethonium • The PI and the IRB did not conduct a sufficient literature search • Approving an inadequate consent form • The consent form did not state that hexamethonium had not been approved by the FDA • The consent form did not state that the drug’s safety was uncertain (the only data on the safety of inhaling the drug came from the experience of just 20 people) • Not sufficiently reviewing ongoing research • Ms. Roche was just the 3rd subject in the study • The first subject developed cough and SOB upon exertion lasting a week • The PI did not report the subject’s symptoms to the IRB

  13. ROCHE CASE As a result, all research at Johns Hopkins funded by the federal government was shut down until officials could respond to OHRP’s investigation and findings

  14. OLIVIERI CASE • Involved a Canadian researcher at the Hospital for Sick Children in Toronto • Physician and researcher, Nancy Olivieri, contracted with Apotex to study deferiprone, an iron chelator intended for thalassemia (iron overload) • The contract contained a confidentiality clause preventing the release of findings without Apotex’s authorization during the trial and for one year after its termination • The IRB had not reviewed the contract • The IRB did not require inclusion of provisions in protocol to protect the interests of subjects in the event of premature termination by the industry sponsor

  15. OLIVIERI CASE • Partway into the trial, Dr. Olivieri became concerned that the drug was neither safe nor effective - the drug caused hepatic fibrosis; a claim which Apotex dismissed • Dr. Olivieri conveyed her findings at a scientific meeting, and published her findings in the New England Journal of Medicine

  16. OLIVIERI CASE • Apotex sued Dr. Olivieri for $20 million for breaching the confidentiality clause, and for disparagement • This case highlights several issues: • Academic freedom in clinical research • Conflicts of interest with clinical trials • The need to review industry contracts

  17. AMGEN CASES • Two separate groups of subjects sued for injunctive relief to force Amgen to continue to provide investigational drugs • Suthers, et al. v. Amgen, Inc. Case No. 05-CV-4158 (PKC)(S.D.N.Y. filed April 26, 2005); Abney, et al. v. Amgen, Inc.. Case No. 5:05-CV-254-JMH (E.D. Ky. filed June 21, 2005)

  18. AMGEN CASES • The cases involved Phase II clinical trials sponsored by Amgen to study the effects of a synthetic protein called glial cell line-derived neurotrophic factor (“GDNF”) • The study involved 34 subjects at 8 sites, including NY & KY • The study was designed to test whether GDNF would spur the growth of dopamine-producing cells and alter the course of Parkinson’s disease (not just mask its symptoms) • A pump was implanted to supply GDNF directly to the brain

  19. AMGEN CASES • Consent Language: • Study participant could elect to continue treatment for 24 months after the end of the study • Investigators could withdraw a subject from the study if they found the study contained more risk than benefit, or if sponsor discontinued study for scientific reasons

  20. AMGEN CASES • Scientific reasons include deteriorating health or other conditions that would make continued participation harmful: • 1) Serious adverse reaction to the drug therapy; • 2) Need for treatment not allowed by the study; • 3) Sponsor’s termination or cancellation of study (Suthers et al v. Amgen, Inc., 352 F. Supp.2d 416, 421 (S.D.N.Y. June 6, 2005)

  21. AMGEN CASES • Amgen had expected to see a 25% increase in test scores after 6 months of study treatment • However, results showed only a 10.01% increase; and a 4.52% increase in the placebo treated subjects’ scores • Amgen terminated the use of GDNF, citing safety concerns: • 1) Several human subjects developed neutralizing antibodies; • 2) A primate study - 4 out of 44 primates suffered cerebral toxicity

  22. AMGEN CASES • Amgen also cited lack of efficacy as basis for discontinuing the study, noting positive effects experienced were from placebo effect; a common effect in clinical trials for Parkinson’s disease • Amgen consulted with FDA before terminating the study; FDA agreed that the termination was reasonable in light of the scientific evidence

  23. AMGEN CASES First Cause of Action • Breach of contract • The informed consent constituted a contract & promise by Amgen to continue treatment indefinitely • The investigators executed the contracts as agents of the sponsor • The Court found no actual or apparent authority to bind Amgen • The investigators, and not Amgen, executed the informed consents with the participants. • The consents provided that the investigators would conduct the study independent of Amgen • Amgen had not said or done anything which clothed the investigators in apparent authority to act on its behalf

  24. AMGEN CASES Second Cause of Action • Promissory Estoppel • Amgen made promises, on which plaintiffs relied to their detriment, by undergoing the pump implantation surgery • Amgen was bound by the investigators’ statements that they would make decisions based on the subjects’ best interests, and the subjects would continue to receive GDNF following the conclusion of the study if GDNF proved to be safe & effective

  25. AMGEN CASES Third Cause of Action • Breach of Fiduciary Duty • Fiduciary duty is the legal obligation to act primarily for someone else’s benefit, while subordinating one’s personal interest to that of the other person • Amgen breached a fiduciary duty owed to them by unreasonably denying their access to GDNF • Courts found no evidence that Amgen had agreed that its sponsorship of the study would be undertaken primarily to benefit participants • Rather, the study was intentionally structured to foster independence and objectivity on the part of the investigators and their research institutions, thereby insulating them from any conflict of interest which might arise from Amgen’s involvement • Amgen had not selected the subjects, met the subjects, or known the details of the subjects’ medical conditions • Given these considerations and FDA regulations which govern the manner in which clinical trials are executed, the courts found no factual or legal basis to impose a fiduciary duty on Amgen

  26. DARKE CASE • Susan Darke v. Jeffrey Isner, M.D., James Symes, M.D., St. Elizabeth’s Medical Center et al (2004) • Experimental gene therapy for patient with occluded cardiac vein grafts • Dr. Isner (chief of cardiovascular research at St. Elizabeth’s) developed experimental treatment for CAD which involved the injection of a particular gene directly into the heart • Patient/subject died in surgery

  27. DARKE CASE • Dr. Isner formed a corporation with other individuals named Vascular Genetics, Inc. (VGI) • Dr. Isner and St. Elizabeth’s each owned 20% ownership interest in VGI • Plaintiff contended: • Dr. Isner & St. Elizabeth’s had a financial incentive to encourage patients to participate in the program – they stood to profit from a successful gene therapy program • Informed consent failed to disclose the financial stake Dr. Isner & St. Elizabeth’s held in gene therapy program • Mr. Darke would not have elected to participate had he known of financial interest

  28. DARKE CASE • Question before the Court: Is Massachusetts’ common law definition of informed consent broad enough to impose tort liability on a doctor who fails to disclose to patients his financial interest in the study he recommends?

  29. DARKE CASE • Moore v. Regents of California, 51 Cal 3d 120 (1990). California Supreme Court reversed trial court’s dismissal of a claim for medical malpractice. Liability predicated on doctor’s failure to tell his patient of his intent to use the patient’s cells in potentially lucrative medical research • D.A.B. v. Brown, 570 N.W. 2d 168 (Minn. Ct. App. 1997). Minnesota Court of Appeals held that doctor’s failure to disclose to patient that he received payments from a drug company for prescribing a certain drug “presents a classic informed consent issue.” “It is well accepted that patients deserve medical opinions about treatment plans and referrals unsullied by conflicting motives.” Court relied on state professional ethical standards. • Shea v. Esensten, 107 F.3d 625 (8th Cir. 1997). The Court held that the plaintiff stated a claim in which allegation that his doctor failed to tell him about financial incentives that it offered to employees to discourage them from making referrals. In order for the patient to make a fully informed consent about whether to trust his doctor’s recommendation that a cardiology referral was not necessary, he should have been told about the doctor’s financial stake.

  30. DARKE CASE • The real question is whether the information is material to the patient’s decision. Question not whether physician must as a matter of law disclose any given fact to patient, but whether the jury should be informed about a failure to make that disclosure and make up its own mind as to whether the information was material under the circumstances. Arato v. Avedon, 5 Cal 4th 1172 (1993).

  31. DARKE CASE • Court guided by Association of American Medical Colleges (AAMC) guidelines & Council on Ethical and Judicial Affairs • Requires research consent to disclose the existence of any significant financial interest that the researcher has in the study treatment • Physicians in managed care settings should disclose to their patients financial incentives and restrictions placed on them by the HMO • American Society of Gene Therapy • Advises investigators against having “equity, stock options or comparable arrangements in companies sponsoring the research” • Code of Federal Regulations (21 C.F.R. Section 50.20; 50.25) • Requires clinical investigators conducting experimental treatment to disclose to patients any “benefit” that might be gained by third persons as a result of the treatment

  32. DARKE CASE • Court found that while regulations were not controlling on the question of state common law, they do indicate a trend towards requiring physicians to disclose non-medical information to the patient • Court held that allegations created a triable issue of fact, and denied defendants’ motion for summary judgment

  33. Subject Injury Litigation Involving The Regents

  34. DAVENPORT CASE • Clinical trial at University of California Los Angeles, which involved surgically implanting experimental drug called Spheramine into the brains of patients with Parkinson’s • Berlex sponsored the trial; Berlex partnered with Titan Pharmaceuticals which developed Spheramine • UCLA enrolled patients and evaluated them before and after receiving the treatment

  35. DAVENPORT CASE • Suzanne Davenport signed the UCLA consent form which stated: “If you are injured as a direct result of research procedures, you will receive treatment at no cost. The University of California does not provide any other form of compensation for injury.” • Ms. Davenport went through periodic pre-operative tests at UCLA • The venue for the surgery was changed from Stanford University Medical Center to Tampa General Hospital (TGH) in Florida

  36. DAVENPORT CASE • The form contained 3 injury statements • University of Southern Florida (USF)’s statement provided that financial damages would be available in the event of an injury “to the extent that negligent conduct of a University employee caused your injuries,” but such damages could be “limited by law.” • TGH’s statement provided that the cost of treatment for any injury “may be the responsibility of you or your insurance company.” • Berlex’s statement provided that “If, because of your participation in the study you require additional care that would not ordinarily be necessary for your condition this will be provided at no additional cost to you.”

  37. DAVENPORT CASE • After the surgery on January 14, 2005, Ms. Davenport could no longer sit upright. She could not walk. She fell forward in a chair unless restrained. • Ms. Davenport’s family ultimately placed her in a nursing home • After conversations with UCLA, Titan and Berlex, Ms. Davenport’s attorney made a demand to Berlex in the amount of $414,976.02

  38. DAVENPORT CASE • The family sued Titan, Berlex and The Regents, seeking $5 million • The family named The Regents; not TGH nor USF • The UCLA consent form offered the broadest description of compensation for medical care

  39. Subject Injury Program/UCSF

  40. Subject Injury Program/UCSF • History of UCSF SI Program • 1/1979 OP SI Policy Memo • 11/2005 funds from GL allocated for System-wide claims payment established and managed by UCOP • Each UC campus must establish its own local SI claims management program • 7/2006 UCSF SI Program established

  41. Subject Injury Program/UCSF • Since 1978, both DHHS and FDA have required an additional element of consent regarding treatment and compensation for injury resulting from participation from research • The current regulations for consent forms require for research involving more than minimal risk: • An explanation as to whether any compensation and whether any medical treatments are available if injury occurs and, • If so, what they consist of, or where further information may be obtained

  42. Subject Injury Program/UCSF • UCOP Subject Injury Policy - 1979 • The University of California will provide to any injured subject any and all medical treatment reasonably necessary for any injury or illness • Which a human subject suffers as a direct result of participation in an authorized University activity covered by University policy on the protection of human subjects in research • Or reimburse the subject for the costs of such treatment, • Except when the injury or illness is a consequence of a medical research procedure which is designed to benefit the subject directly

  43. Subject Injury Program/UCSF • UCOP Subject Injury Policy 1979 (cont.) • It is the preference of the University that the medical treatment available under this policy be provided at a University of California medical facility • The obligations of the University of California undertaken … shall be subject to the following conditions: • It must be demonstrated that the injury resulted directly from participation in the specified activity • Written notification of any such injury is to be given to the University by the human subject within a reasonable time after discovery • Any claim for reimbursement is to be supported by appropriate documentation

  44. Other Subject Injury Programs • Other Subject Injury Policy Programs • University of Washington Approach • The subject chooses between participating in the no fault program which is capped at $10,000 or pursuing a conventional tort remedy • UW’s no fault program does not cover • Impairment of mental processes • Emotional distress • Experimental diagnostic or therapeutic procedures when they are performed as part of patient management

  45. Other Subject Injury Programs • Other Subject Injury Policy Programs • Adverse effect is defined to mean bodily injury • Except in special circumstances, the term does not include impairment of mental processes or emotional distress, nor does it encompass effects resulting from: • Diagnostic or therapeutic procedures, both standard and experimental, performed as part of patient management • The normal course of a disease or condition; or • The subject’s lack of compliance with study procedures

  46. OHRP’s Position re Non-Physical Injury • OHRP’s Position re Coverage of Non-Physical Injury from Research (Impairment of Mental Processes or Emotional Distress): • If research-related injury (i.e., physical, psychological, social, financial, or otherwise) is possible in research that is more than minimal risk (see 45 CFR 46.102[g]), an explanation must be given of whatever voluntary compensation and treatment will be provided

  47. SI Case #1 (Complainant SM) • SM • Evaluation of breast disease using MRI imaging • Study participation: July to Dec. 1998 • Complainant: 37 yrs old at time of participation • Confirmed pre-study dx of DCIS • Strong family hx of cancer x 3 generations and mother with breast CA • 12/2005: Initial complaint to CHR/HRPP regarding delay in SM’s request for study specimen results

  48. SI Case #1 • SM (cont.) • Subsequent investigations and correspondence revealed SM’s belief that study MRIs were used to “rush” her to unnecessary bilateral mastectomy • 11/2006: SM submits subject injury claim stating “Post Traumatic Stress Syndrome” as a result of study participation • 2/2007 UCOP declines to pay for psychological counseling sessions requested by SM and CHR

  49. SI Case #1 (Complainant SM) • SM (cont.) • Case remains open and under appeal with UCOP SI Program for coverage for psychological counseling • UCOP SI Program offered $2,500 which represents 10 - 12 sessions of psychological counseling • Subject says settlement offer is “unfair” and she believes she is “forced to accept” offer • Offer is currently pending

  50. SI Case #2 (Complainant MA) • MA • Use of human growth hormone to enhance T-cell activation in HIV positive adults • Study Participation: 8/2003 to 8/2005 • 8/2005: Files SI claim – finger stiffness • 9/2005-12/2005: initial CHR claims investigation and subsequent response letter to subject reporting “no findings” • 1/2006: MA appeals CHR decision • 2/2006-6/2006 MA calls repeatedly to CHR Chair, HRPP QIU staff