WHEN DO YOU NEED A LAWYER?

BY KIM SVESKA, R.Ph., Pharm.D., J.D., Foley, Baron, Metzger and Juip, PLLC

Many people have asked me over the years whether or not they need a lawyer under various circumstances. I will address some basic issues and concerns in a pharmacy setting where a lawyer might come in handy.

DAY-TO-DAY OPERATION

Many lawyers and law firms have agreements with their clients to provide general counsel services. This works where an attorney requests a small retainer fee to be available to the client on an ongoing basis and answers any questions they might have. Our firm handles this by answering questions as needed and billing the client for the time it takes to respond to them monthly.

Most pharmacists and pharmacy technicians handle questions related to day-to-day operations by consulting professional resources, the internet and colleagues. Most routine day-to-day operational questions do not require a lawyer's expertise, but this depends on the circumstances. A few recent questions that have come up were based on the federal requirement that physicians prescribe controlled substances and other prescriptions electronically starting in January 2023. For example, what about a defiant physician who says, "I'm not going to prescribe electronically– I don't want to and you can't make me," but they don't qualify for any exemptions?

Insurance Company Audits

Pharmacies are the most audited entities in the United States, if not the world. Whether or not a lawyer could help respond to an audit depends on the nature of the audit and what stage the pharmacy is in the audit process. For example, many pharmacies handle an initial audit response without the aid of an attorney and only consult one if there is a negative outcome and a right of appeal exists. Most insurance companies have at least one level of an appeal following an audit finding; it would be a good idea to get a lawyer engaged in responding at the second level.

Not all audits are the same. An inventory reconciliation audit is the most onerous, especially if it looks back six years. Most pharmacies always have a negative finding under those circumstances because of purchasing prescription products through nonstandard sources and subpar tracking of those purchases.

Licensure Investigations

If the Bureau of Professional Licensing investigates in the pharmacy setting, it is usually disguised as a routine random pharmacy inspection. Most pharmacists and pharmacy technicians handle the initial inspection without the aid of an attorney. If it involves an attorney, it is typically in assisting them to respond within the 30-day time window for corrections related to the inspection. During these types of audits, sometimes the inspector(s) will request copies of prescriptions and drug utilization review information. Of course, that does create additional concerns and certainly points to the fact the inspection was never random or routine. Usually, at that point in time, it is a good idea to engage an attorney who can assist you in handling the situation in the best possible fashion.

RECORDS REQUEST AND/OR SUBPOENA BY A LAWYER

In general, most of these requests are benign and are not directed toward pharmacy activities; they are simply gathering information within a lawsuit regarding prescribed medications. This type of situation would rarely require assistance from a lawyer; however, if it appears that the records request will be targeting the pharmacy in some way, you should reach out to your malpractice insurance carrier and discuss the possibility of a claim sometime in the future. They may suggest engaging an attorney pre-suit to again make sure that the possibility of a claim is handled in the best possible way. Many insurers will allow the pharmacy owner to recommend an attorney.

Pharmacy Malpractice Lawsuit

In Michigan, it is required before filing a malpractice lawsuit that a Notice of Intent must be filed. Contacting the insurance carrier is essential if the pharmacy receives a Notice of Intent related to a possible pharmacy malpractice claim. Based on their review, it will likely result in the assignment of an attorney to assist in the pre-suit time frame, as well as after a lawsuit is filed – if one is filed. Again, the pharmacy may be able to request a specific attorney, but that does vary amongst the insurers.

NON-MALPRACTICE LAWSUIT

Occasionally, people will file "slip and fall" lawsuits concerning something that happened on the pharmacy premises. These should also be reported to the appropriate insurance carrier as well and they will likely assign an attorney they already know in the area and ask that the attorney handle the case. Requesting a specific attorney for this type of case may also be possible.

Threatened Lawsuit

It is possible that an angry patient – for example, one that received a mis-filled prescription – could threaten a lawsuit and request that they receive some type of compensation. These possible claims should also be reported to the pharmacy malpractice insurance carrier. The carrier may suggest engaging an attorney to ensure negotiations are correctly done and the patient signs a release to prevent them from obtaining a settlement and filing a lawsuit anyway because a release was not actually signed off on.

General Business Needs

Many general business issues occur in a pharmacy's lifespan, including buying or selling the pharmacy, bringing in new partners, starting a pharmacy from scratch, etc., where a lawyer can be helpful. Unfortunately, I have been involved in several situations where a pharmacy partnership breaks up and lawsuits are filed. Still, there was no partnership agreement or other corporate structural documents, so it becomes a "free for all." It is wise to have corporate structural documents, such as partnership agreements, in place to guide the business on an operational basis and hopefully prevent lawsuits from developing.

Dea Or Department Of Justice Investigations

If a Drug Enforcement Administration and/or Department of Justice investigator comes to the pharmacy with a search warrant, it would be essential that the pharmacy owner and anybody potentially "in the crosshairs" regarding the case hire an attorney. Depending on the circumstances, hiring an attorney that understands pharmacy is typically a good choice. Sometimes it may require two attorneys – one that understands pharmacy and one that handles criminal cases.