A Houston doctor has sued a dead patient's mother and the owner of the Austin American-Statesman for what he claims was a hit piece published in violation of a settlement order.
Joel Joselevitz, 56, was one of three physicians whose disciplinary history with the Texas Medical Board was covered in a December 2014 investigation by reporter Mary Ann Roser about how doctors who prescribe addictive painkillers to patients who subsequently die are rarely, if ever, charged with a crime.
As reported in the story and in TMB records, three of Joselevitz's patients fatally overdosed between 2010-2012. Joselevitz was barred from prescribing certain scheduled drugs in 2014, "based upon his operation of a pain management clinic without proper certification and nontherapeutic prescribing to multiple chronic pain patients," according to a Board order.
The order also states that, during a 30-day period in 2013, Joselevitz prescribed a controlled substance to 98.2 percent of the 449 patients he saw. Citing a database compiled by ProPublica, Roser wrote:
"In 2011, Joselevitz ranked No. 1 in Texas for his prescribing of hydrocodone to Medicare patients....Those patients receives an average of 23 prescriptions, compared with an average of 10 by his peers. Also, 97 percent of his patients filled at least one prescription for a narcotic painkiller, compared with 82 percent of his peers' patients...."
Joselevitz graduated from medical school in Mexico in 1984 and was fully licensed in 1992, after working at Saint Michael's Medical Center and University of Medicine and Dentistry, both in New Jersey, according to board records. He was also a resident at Kingsbrook Jewish Medical Center in Brooklyn. He was board-certified in 2004 by the American Board of Physical Medicine & Rehabilitation.
Carol Roane, the mother of a patient who overdosed in 2012, sued Joselevitz for malpractice in 2013. She accused Joselevitz of prescribing "a series of unnecessary and dangerous prescription pain medications" to her daughter, Nicole Willens, despite the fact that she displayed signs of drug addiction. The parties settled in June 2014.
Five months later, after Roser emailed Joselevitz with an interview request, the doctor filed his lawsuit against Roane for allegedly violating the terms of their settlement. He also asked a judge to order the American-Statesman not to run the story. (Lawyers for the Georgia-based Cox Media Group insist that, while Cox is the paper's ultimate parent, it is not the corporate entity with direct control over the paper and has no ties to Texas, and therefore is not under the court's jurisdiction.)
Joselevitz's lawyer, Howard Steele Jr., told the Houston Press in an email that "We believe that we have wrongly been defamed by the Austin American Statesmen and that there is a breach of the confidentiality agreement by Ms. Roane."
Here's how it went down, according to Roser's story:
Joselevitz wrote in an email to the Statesman that he did not want to discuss his prescribing or patient deaths.
"I am afraid the TMB can cause me further damage," he said, referring to the medical board. "One thing I can tell you is that the majority of my 600+ ex-patients cannot obtain anymore appropriate pain management services."
A Twitter account in his name says in a June 24 post, "TMB you will be proven wrong!" A May 14 tweet says, "TMB wants Doctors to desist to treat legitimate pain patients via their witch hunt campaign. Pain Patients Unite!"
Joselevitz sued the [Cox Media Group] and Roane after the Statesman emailed him requesting an interview. His lawyer Howard Steele Jr. wrote back, saying, "If we can agree to refrain from publication so there will be no irreparable injury to my client, I am sure we can resolve this matter."
Steele further argued in a motion that the doctor and "Roane entered into a valid and enforceable settlement agreement that overtly stated that Roane could only talk to health care providers as necessary and would not publicize the matter," Joselevitz's lawyers claimed. "It also stated that there was no admission of any fault for the settlement payment." (Curiously, the actual settlement document is not an exhibit in the court records. Roser and Roane's attorney, Daniel Horowitz, declined to comment. An editor at the Statesman also declined comment.)
During a flurry of filings in mid- and late-2015, Joselevitz dropped his suit against Cox — which claimed that it was not a party to the agreement, and defended its story using the anti-SLAPP nuisance lawsuit statute — then refiled after Roane was deposed. In her original deposition, Roane claimed that Roser misquoted or mischaracterized her statements in three cases. [Disclosure: Cox is represented by Austin attorney Jim Hemphill, who has also represented the Press].
Although Roane subsequently retracted those claims, Joselevitz refiled his suit against Cox and sought again to compel Roser's deposition. A judge sided with Joselevitz on Tuesday and ordered to Roser to make herself available for deposition.
Cox's lawyers claim in a Jan. 7 filing that, despite repeated requests, "no party has ever provided a copy of the [settlement] clause" detailing terms of confidentiality.
"Joselevitz essentially contends that the clause prohibits Ms. Roane from saying anything about him to anyone," Cox's lawyers argued. (They say elsewhere, "To be sure, Joselevitz characterizes it frequently, using his own words" — he's just never provided it).
Joselevitz's lawsuit against both the newspaper and the mother of one of his dead patients is concerning on a number of fronts
In the Statesman's story, Roane is quoted as saying things like, "In my opinion, [Joselevitz] just slowly killed her with his prescription pad," and "The hardest part is I can't hold my child anymore." If there really is a settlement agreement forbidding a grieving mother from opining on the circumstances surrounding her daughter's death, then we'd like to see it, because that sounds like a doozy.
If you like this story, consider signing up for our email newsletters.
SHOW ME HOW
You have successfully signed up for your selected newsletter(s) - please keep an eye on your mailbox, we're movin' in!
Furthermore, the entire section on Joselevitz could have been written without Roane's input, because, ultimately, the damning details are in the TMB orders. Regardless of what Roane says or feels, the Texas Medical Board felt in 2014 that Joselevitz's "unrestricted practice of medicine posed a threat to the public welfare."
It's the Board, not Roane, that ended Joselevitz's ability to treat patients for chronic pain. It is the Board that restricted his ability to prescribe schedule II-V drugs.
It's the Board that found that Joselevitz "failed to properly monitor" the 449 audited patients "for aberrant drug-taking behavior and/or failed to properly respond to indications of aberrant drug use." Joselevitz was found by the Board — not by Roane or Roser — to have kept "inadequate" records of those patients, and "failed to meet the standard of care."
At the end of the day, it appears the Statesman's investigation, like the Texas Medical Board, were concerned about threats to the public health. Based on his lawsuit, it appears that Joselevitz's priorities lay elsewhere.