Tag Archives: Pharmacist

What can the innocent doctor do when audited for drug diversion?

At all ages, there are people who will abuse prescription narcotics one way or another. Some abuse narcotics, causing danger to themselves, and others sell or give them to others, contributing to danger and illegality. When someone goes to the doctor, presenting a condition requiring pain medication, for example, the doctor has no idea or control regarding what the patient can and will do after they leave to get their prescription filled and are on their way. If the patient has a temporary condition that never seems to get better, or despite all reasonable pain management efforts, the patient still needs narcotics, there could be a greater underlying problem such as drug diversion.

What is drug diversion?

Drug diversion is the taking and giving, selling or otherwise using prescribed, controlled narcotics for any purpose other than that which the physician wrote the prescription. State and federal investigators and their agencies have charged many physicians with criminal violations in connection with drug diversion. While some may be guilty as charged and making money off drug diversion, others may be unknowing victims of the bad acts and schemes of others, within and beyond the healthcare facilities and systems within which they practice.

The drug diversion statistics and information collected and shared in the health care community are compelling. As new “tricks of the trade” are discovered, so are more examples of diversion behavior. A 2013 drug diversion awareness conference presentation highlights DEA perspectives on pharmaceutical use and abuse.

How can a physician know if their patient may be engaged in drug diversion?

No matter what the honest physician, assistants and staff do to prevent drug diversion, it may be impossible to spot every bad actor.

Awareness and education are key tools in combatting drug diversion. Not only must prescribing physicians pay attention to this problem, their nurses, staff and those at the pharmacy or dispensing authority should all be part of the conversation and sharing of information when something or someone just does not seem right. Pain medication tracking systems and new technologies make it easier to monitor narcotics and the patients to whom they are prescribed. Despite all the education, awareness and tracking efforts, drug diverters can still slip between the cracks, exposing the physician to liability.

Liability concerns and fear of investigations are making many physicians more careful, but some say they are too careful. Patients with legitimate needs for high-dose of powerful pain narcotics might be denied the painkillers they need to not be in chronic pain, because that patient’s history and prescriptions could trigger an audit in an electronically monitored system.

What can a physician do if they are targeted and accused of running a “pill mill?”

Under a federal standard, physicians face criminal liability if they prescribe controlled narcotics without a “legitimate medical purpose” and outside the “usual course of his professional practice.[i]” State standards vary from one to the next, some being higher than others.

In Illinois, the Medical Practice Act of 1987 enumerates the laws of the State of Illinois with respect to physicians and physician assistants and their legal duties and restrictions with respect to prescribing controlled narcotics. In addition to criminal liability, the Act specifically identifies grounds for discipline by the state for “Prescribing, selling, administering, distributing, giving or self-administering any drug classified as a controlled substance (designated product) or narcotic for other than medically accepted therapeutic purposes.[ii]

If federal or state investigators receive a tip or independently “audit” (investigate) your practice with a search warrant, they may already suspect there is a violation of law and they simply want proof to charge the physician with crimes. At the very first moment a physician senses or is notified of an audit or investigation of their practice and prescription histories, the physician should immediately contact an experienced healthcare law and licensing attorney with a criminal defense focus.

Michael V. Favia & Associates, P.C. represents Illinois-licensed professionals in actions involving the IDFPR and the federal and state agencies investigating and prosecuting for drug diversion. Physicians are well-advised to obtain proactive advice and counsel to make sure they are well-protected.

Chicago health law and litigation attorney Michael V. Favia and his associates in several locations and disciplines, advise and represent licensed physicians in all types of litigation and administrative matters involving licensing and regulatory agencies.

Michael V. Favia and Associates, P.C. represents individual physicians and health care organizations in the Chicago area with a variety of legal matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates, please call (773) 631-4850, visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.

[i] U.S. DOJ, Office of Diversion Control, Purpose of issue of prescription, 21 C.F.R. § 1306.04(a)

[ii] Illinois Medical Practice Act of 1987, 225 ILCS 60/22 (A)(17).

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Illinois Prescription Monitoring Program: Doctors should monitor heavy drugs

The program is designed to prevent the misuse, abuse and diversions of controlled prescription medications.

The program is designed to prevent the misuse, abuse and diversions of controlled prescription medications.

For many of us, a trip to the local pharmacy to fill a prescription is a routine event we don’t think too much about. The pharmacists and doctors, however, share a great deal of liability. While most patients follow their prescriptions responsibly, others are misusing the drugs for recreation, illegal sale and other unlawful purposes. Schedule II-V prescriptions have varying known levels of abuse and can lead to psychological or physical dependence. Schedule II drugs such as morphine, oxycodone and methadone, have the highest potential for abuse[i].

The Illinois Department of Human Services (“IDHS”) implemented the Prescription Monitoring Program[ii] (“PMP”) and is connected to a national database to identify and prevent abuse of prescription drugs.

The program is designed to prevent the misuse, abuse and diversions of controlled prescription medications. The PMP database is useful to prevent “doctor shopping” because registered database users can identify patients who excessively obtain controlled drug prescriptions. The PMP database is also integrated with Electronic Health Record (“EHR”) systems that can be accessed across healthcare networks.

Chicago health law attorney, Michael V. Favia, recognizes that prescription drug abuse is a serious problem, “Many physicians and health practitioners who prescribe drugs sometimes get in serious trouble because they are not properly monitoring their patients use of heavy drugs.  What happens is that sometimes addicted patients will go to several doctors asking or seeking addictive drugs.”

Using the PMP system, retail pharmacists, hospitals and dispensing physicians enter their written prescriptions within seven days of dispensing controlled substances. “Each doctor that prescribes these drugs should be checking the Prescription Monitoring Program to see if anyone else is prescribing the same type of drugs. Failure to do so can result in serious disciplinary problems,” Favia suggests.

To register and participate in PMP:

To register for the PMP system, Illinois physicians, physician’s assistants, advance practice nurses, residents, dentists, optometrists and veterinarians may use the prescriber link (and pharmacists use the pharmacist link) on the PMP website.

Michael V. Favia & Associates are available to assist with physicians working to prevent prescription drug abuse. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates’ professional licensing work, please visit www.IL-Licensing.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter.

[i] AwareRx.org, Get Informed, controlled substances

[ii] 720 ILCS 570/316

HIPAA violation triggers $1.44 million jury verdict against Walgreen’s and pharmacist

Most people understand that the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) concerns the privacy of our personal healthcare information. Indeed the Act establishes strict rules for the professionals who have access to and keep our private records that contain information from our height and weight to medications we take and illnesses we fight. Many people are very sensitive about others knowing their private medical business, and for good reason. In our society, being sick is often seen as a weakness. What we seldom hear about are violations of HIPAA and what can happen when our private healthcare information is compromised. In this short article, we examine HIPAA and how courts in Indiana addressed a HIPAA violation and the jury awarded $1.44 million to a customer of Walgreen’s for a confidentiality breach.[i]

"Although HIPAA does not create a private cause of action, a recent Indiana Superior Court jury verdict demonstrates that HIPAA still could play an important role in private causes of action in state court based on negligence and professional liability as it relates to confidentiality." JD Supra Law News

“Although HIPAA does not create a private cause of action, a recent Indiana Superior Court jury verdict demonstrates that HIPAA still could play an important role in private causes of action in state court based on negligence and professional liability as it relates to confidentiality.” JD Supra Law News

About the two parts of HIPAA and what they mean to you.

Two main sections of HIPAA affect our private healthcare information. Title I protects our employees and their families’ health insurance during a period of job change or job loss. Title II is the section, known as the Administrative Simplification provisions, that controls national standards for electronic healthcare transactions. This second part concerns national identifiers and applies to healthcare providers, employees and their insurance plans. Security and the privacy of our personal healthcare data is controlled by this second part of the Act.[ii]

The customer’s pharmacist shared confidential information about a pregnancy and the same information used to intimidate the customer who demanded child support from the pharmacist’s husband!

A twisted love triangle and child support payments were central to the case where, unbelievably, a licensed pharmacist’s husband fathered a child with the Walgreen’s customer. When the pharmacist allegedly discovered and disclosed her customer’s prescription information when confronting her husband about the pregnancy. The pharmacist’s husband then allegedly used the private information to both intimidate the customer when she demanded child support payments from the pharmacist’s husband. The abused customer sued Walgreen’s and its pharmacist in the Indiana Superior Court.

The HIPAA law does not specifically address private lawsuits against healthcare providers or other covered persons for violations of the Act. Nevertheless, the Court allowed arguments regarding negligence and professional liability for violating HIPAA. The Plaintiff customer’s complaint alleged both Walgreen’s and its pharmacist “breached their statutory and common law duties of confidentiality and privacy. The complaint also included claims of negligence, invasion of privacy and publication of private facts against the pharmacist and claims of negligent training, supervision and retention against Walgreen’s for continuing to employ the pharmacist after discovering the incident.”

While this is not the first time the structure and intent of the HIPAA law was used to support an individual’s lawsuit for violations of the Act, however, this is the first very large verdict. A $1.44 million dollar loss sends a message that the impact of HIPAA violations is much more severe than an insignificant punishment. Privacy concerns are certainly on our minds, as the media shares more stories about what can happen with laws are not followed.

The Law Offices of Michael V. Favia represent wronged plaintiffs in a variety of cases, including complaints against healthcare professionals who run afoul of HIPAA, either negligently and/or intentionally.

The Law Offices of Michael V. Favia are known for advising and representing clients in connection with healthcare matters. To contact the firm to speak to a lawyer about a healthcare-related concern you may dial (773) 631-4580. For more information about the firm’s practice areas, you can visit the website, Facebook and Twitter sites.