pills-2-300x225More than 2,000 opioid lawsuits are pending nationwide. A large portion of these lawsuits target drug manufacturing companies for their contributions to the opioid epidemic that is plaguing the country.

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For example, in one case earlier this summer in Oklahoma, a judge ordered Johnson & Johnson to pay $572 million for the company’s contribution to the opioid crisis. Furthermore, over the next few months, other courts will continue to handle cases as state governments work diligently to mitigate the impacts that the opioid epidemic has had within their jurisdictions. Although Big-Pharma companies are being targeted in litigation, however, retail pharmacies, large and small, are gatekeepers for opioid prescriptions. Given the role of pharmacies, they might be used effectively to combat the opioid epidemic. The role of retail pharmacies in the battle against opioid addiction is crucial, but not necessarily recognized by city governments. A new databank from the DEA tracks opioids at a local level, and makes it possible for pharmacies to band together in understanding unique trends within their own communities.

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On September 18, 2019, Kevin Little, a partner in Hamil Little, spoke to physician members of the national American Osteopathic Association.  The title of Mr. Little’s presentation to the physicians was Setting up a Concierge Medical Practice: Pointers and Pitfalls.  Our business and healthcare law firm has advised and represented physicians, medical practices and other healthcare professionals who have established “concierge” or “direct primary care” medical practice models, as well as other unique models and arrangements.

device-digital-pen-6336-e1540845862509A sign of the times in the evolution of modern healthcare practice is the prevalence of the electronic health record (EHR).  In the past fifty years, technological advances and payer incentives have resulted in a sea of change in healthcare documentation, causing healthcare providers to shift from the historic practice of using paper records to using electronic health records.  Healthcare providers navigating the transition from paper to electronic records have encountered many challenges in learning and mastering the efficient and accurate use of EHRs.  One challenge with significant and potentially life-or-death consequences to patient health is ensuring that EHRs contain accurate information.

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According to a recent report from Becker’s Healthcare, EHR-related medical malpractice claims have tripled since 2010.  Although EHR-related deficiencies are not typically the main reason for medical malpractice claims, they are a significant factor identified as contributing to medical injuries in a growing number of cases.  The Becker’s article cites a study by Doctor Company, which indicated that on average in 2010, only seven medical malpractice cases assessed identified EHR errors as a contributing cause to claims; that number rose to an average of 22.5 cases per year in 2017 and 2018.

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1066058_patrol_hat_too1Healthcare fraud attributable to nurses, hospitals, pharmacists, equipment providers and doctors, contributes to the high cost of medical care. For this and other reasons, fraud continues to be a hot topic in the healthcare industry. Recently, there have been numerous headlines regarding Medicare, Medicaid, and private insurance company investigations of providers for improper billing practices. Accusations stem from both whistleblowers and audits, making it difficult for providers to hide behind fraudulent billing practices. With numerous investigations in the spotlight in recent months, providers should be alert and act to ensure that they are compliant with the law.

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The Best Lawyers in America© recently recognized Kevin Little of our firm by including him in its 26th Edition for his work in the practice area of Healthcare Law, for 2019.  This distinction ranks Mr. Little among the top 5 percent of private practice attorneys nationwide, as determined purely by attorney peer review.  For more than three decades, Best Lawyers has been regarded – both by the legal profession and the public – as the most credible measure of legal integrity and distinction in the United States.  Inclusion in Best Lawyers is based on a rigorous peer-review survey comprising evaluations by top attorneys.

The International Association of Defense Counsel (IADC) recently accepted Kevin Little of our law firm for membership in the IADC.  The IADC is comprised of leading corporate attorneys and insurance executives throughout the world.  Its members are distinguished partners in large and small law firms, senior counsel in corporate and insurance law departments, and insurance executives.  Mr. Little was nominated by Peter J. Pizzi of Newark, New Jersey and sponsored by William J. Kelly III of Denver, Colorado and Elizabeth Haecker Ryan of New Orleans, Louisiana.  IADC’s standards for membership are very exacting.

to-sign-a-contract-2-1221951-mConsulting legal counsel to review a physician’s employment agreement before a dispute arises may increase a doctor’s negotiating power and help obtain better working conditions. Employment agreements contain many provisions, which may include: compensation arrangements, arbitration clauses, terms defining the scope of liability insurance, and non-compete agreements. As physicians in the workplace are tending to move away from working in solo practices, we are finding that hospital, health system and other corporate employment agreements containing non-compete clauses are becoming more prevalent.

The American Medical Association advises against physicians entering into restrictive non-compete agreements, saying that they “can disrupt continuity of care, and may limit access to care.”. While the AMA advises physicians to be cautious about unreasonable restrictions and those that limit patient choice of providers, generally speaking, non-compete agreements have been upheld and determined enforceable in courts. Courts can limit the enforcement of these agreements, however, if they deem the provisions unreasonable or too restrictive. Courts have varied in what they define as unreasonable or overly restrictive, in terms of duration and geographic radius.

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Hamil Little is a proud affiliate of the CSRA Medical Group Management Association.  Lee Little was honored to present as July’s featured speaker on Healthy Medical Practice Management: Legal, Risk and Compliance Considerations.  Ms. Little shared considerations for medical practice managers in meeting current challenges in the healthcare business and regulatory environment, to support their important work and continued focus in providing excellent patient care.

1238683_untitledAs the opioid epidemic continues to cause death and create economic hardships within the nation, criminal prosecutors and law enforcement agents have increased their focus on prosecuting and pursuing severe penalties against doctors, pharmacists, nurses and other healthcare providers as a deterrent for providers who would prescribe opioids in excess. For example, earlier this month, a doctor in Kansas was sentenced to life in prison after distributing prescription drugs that caused the death of his patient. Steven Henson, a physician based in Wichita, was convicted of numerous criminal charges after prescribing opioids in amounts that could lead to addiction and economic hardship, after his patient died from overdose. According to the Department of Justice, Henson prescribed maximum-strength opioids in dangerous quantities. Evidence showed that he wrote prescriptions for patients without a medical need and without providing a medical exam. He also post-dated prescriptions and prescribed them in return for cash.

Henson’s case is not unique. In December 2018, physician Phillip Dean of Missouri was sentenced to 40 months in prison and ordered to pay $312,377 to Medicare and Medicaid after illegally distributing opioid medications. In Massachusetts, Dr. Richard Miron was charged with involuntary manslaughter, after being found responsible for the death of a patient in 2016.

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medical-doctor-1314903-mLegislation controlling self-referrals has created a complex road map that can leave doctors with questions regarding their ability to use business agreements to promote lab work and advanced imaging technology for their patients. For physicians, the rules and regulations of self-referrals for imaging can create headaches and lead to fines.

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Physician self-referrals may create conflicts of interest and can potentially result in violations of federal or state law. Previously, providers only had to worry about referrals for patients with federal insurance plans. However, the new legislative trend is expanding their liability. Physicians recently have been prosecuted for kickbacks involving patients with commercial insurance plans as well. If a physician’s referral is determined to be guided by profit and not the patient’s best interest, that referral could be violating the law.

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