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Operation Faux Pharmacy

The Los Angeles office of the Drug Enforcement Administration announced a plan this week which is aimed at fighting the opioid epidemic and targets pharmacies in Southern California that have been identified as potential violators of the “corresponding responsibility” laws. The DEA’s multi-prong initiative includes obtaining search warrants to search those pharmacy owners’ homes, cars and other locations. As part of this initiative, DEA special agents and investigators make onsite visits to pharmacies and demand the DEA registrant to agree to voluntarily surrender his or her DEA Registration.

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Up-Scheduling of all Hydrocodone Products

“Up-scheduling” of all hydrocodone containing products: On August 22, 2014, the U.S. Drug Enforcement Agency (the DEA) published its final rule that places all hydrocodone containing products under schedule II of the Controlled Substances Act. The new “up-scheduling” of hydrocodone as a Class II controlled substance shall take effect on October 6, 2014.

Under the Controlled Substances Act, every controlled substance is classified into one of five schedules. Hydrocodone containing products will remain as a Class III controlled substance until the “up-scheduling” takes effect.

The decision to reschedule hydrocodone was based on its potential for abuse and out of concern for public health. Recent studies have confirmed that there is physiological and physical dependence associated with hydrocodone containing products. There also has been a significant increase in deaths within the last few years associated with the use of opioids and hydrocodone containing products. Tragically, a very large number of young youths have died as a result of overdosing on opioids including hydrocodone containing products.

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Corresponding Responsibility Law

What do the corresponding responsibility obligations require a pharmacist to do when a pharmacist is presented with a prescription for a controlled substance drug? A licensed pharmacist has a corresponding responsibility to make sure that a prescription for a controlled substance written by a prescriber is for a legitimate medical purpose. (California Health and Safety Code section 11153(a).) To comply with the corresponding responsibility requirements, and prior to dispensing a prescription for a controlled substance to a patient, a pharmacist is required to conduct a reasonable investigation to access whether the prescription for the controlled substance is issued for a legitimate medical purpose. To do so, the pharmacist, using his professional judgment, is required to assess a number of factors including: (1) whether the prescription is facially valid; (2) contacting the prescriber if there are questions or concerns regarding the prescription; (3) talking to the patient to determine if the patient is on other prescription medications or if the patient has tried other pain prescriptions; and (4) determining where the prescriber’s office is in relation to the pharmacy and to the patient’s residence.

The corresponding responsibility law also requires a pharmacist to review and evaluate a patient’s use of controlled substance prescription drugs. A pharmacist is able to review a patient’s usage of all controlled substance prescription drugs by accessing a state-wide system known as the Controlled Substance Utilization Review and Evaluation System (CURES). CURES tracks controlled substance prescription drug history information for all patients who have received controlled substance prescription drugs in the state. Information obtained from CURES and a pharmacist’s education, training and experience are valuable in preventing prescription drug abuse and drug diversion. For instance, by obtaining information from the CURES system, a pharmacist is able to determine whether a patient is receiving prescriptions for controlled substance medications from more than one prescriber or receiving prescription drugs from multiple pharmacies, circumstances, which if present, would indicate potential drug abuse and, or diversion.

Based on my experience having represented pharmacists in the State of California who were facing disciplinary charges related to the corresponding responsibility laws, I highly encourage all pharmacists to use the CURES system when presented with a prescription for a controlled substance prescription drug. I also encourage all pharmacists to look for what has been described as “red flags” when they are evaluating a prescription for a controlled substance prescription drug. In addition to the above factors to consider, some of the “red flags” to look for are:

• The patient’s age (a relatively young individual presenting a prescription for a strong pain medication)
• Method of payment (cash payment for pain medications)
• Large quantities of controlled substance prescription drugs
• Patients coming to pharmacy in groups
• Patients from the outside of a pharmacy’s trade area (typically outside of a 5-mile radius)
• Pharmacy is a long distance from the prescriber’s office

At the Marcarian Law Firm, we handled some of the most significant corresponding responsibility cases against pharmacies and pharmacists in the state.

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Marcarian Law Firm Wins $2.2M Arbitration Award Against Kaiser in Wrongful Death Case

The Marcarian Law Firm has just received notice of an arbitrator’s award of $2.2M to the surviving family of a 56-year-old doctor who died as a result of the Kaiser Foundation Health Plan ‘s negligent treatment of his multiple coronary heart disease. In this hard-fought case, the family argued that Kaiser’s interventional cardiologists were negligent in hastily treating only 2 of 6 occluded arteries by angioplasty (stenting) and never seeking the opinion of a cardiothoracic surgeon who would have recommended coronary artery bypass graft (CABG) surgery as the standard of care to treat the entire heart. Two months after Kaiser’s inadequate stenting, the patient died of sudden cardiac death.

For its part, Kaiser relied on an “alternative methods of care” defense and the argument that the fatal arrhythmia could have come from any area of the damaged heart but, more likely than not, from an area that the interventional cardiologists HAD treated. The costly, highly-complex 6-day arbitration involved a parade of experts on both sides. Closing arguments were submitted in writing, followed by an additional day before the arbitrator for clarification and argument. At the request of the arbitrator, final supplemental briefs were then filed.

This was a tough one, but we are extremely gratified that the deceased’s relatively young family will mitigate their economic loss to some degree. The arbitrator awarded the MICRA limit of $250,000 in full, opining that it was an arbitrary number to begin with. The arbitrator accepted the family’s damage calculation in full, subject to a very small offset for certain expenses and a larger offset for comparative negligence on the part of the deceased. All in all, $2.2M net.

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California Employment Law: What is Employment At-Will?

California Employment Law: What is Employment At-Will?

In California, employees are generally presumed to be employed “at-will”, a situation which does not guarantee job security. The doctrine of at-will employment allows an employer to terminate an employee at any time, without need for advance notice and just cause. When an employee is terminated at-will, he or she is not entitled to severance pay or pay in lieu of notice.

Not all employment relationships in California, however, are at-will. Case law, as well, provides certain exceptions in the application of the at-will doctrine.

When your employment is not at-will

 Employment is not considered at-will when:

• Written policies state that you may be fired only on good cause and specify reasons for possible termination of employment.

• The terms of your employment contract guarantee job security.

In either instance, if you are fired for causes not specified in company policies or in your contract, you may have a legal claim against your employer for breach of contract.

Exceptions To At-Will Doctrine

Against public policy: It is a wrongful termination when the termination violates an explicit and well-established policy of the State. Thus, an employee cannot be fired for filing a worker’s compensation claim or for refusing to break the law at the instruction of the employer.

Implied contract exception: The courts will not apply the at-will doctrine when the employer makes oral or written representations to employees regarding job security or when the employee handbook guarantees job tenure or require good cause for terminating employment. Thus, a California court ruled that oral statements saying that the employee shall remain employed as long as his performance is adequate can be construed as creating an implied contract preventing at-will terminations.

Covenant of good faith exception: Specific circumstances such as long years of employment and satisfactory service can create an implied covenant of good faith and fair dealing which can prevent an employer from terminating at will.

At-will employees also have rights and cannot be fired for illegal reasons such as job discrimination and in retaliation for exercising employee rights. If your employment has been terminated recently and under questionable circumstances, your California employment lawyer can determine whether you have been wrongfully terminated.

In California, the Marcarian Law Firm has years of experience in protecting the employment of clients with or without at-will clauses. We also handle many other employment cases such as discrimination, harassment, and wage and hour law matters. Contact us today at (800) 924-3784 to arrange an initial free and no-obligation consultation.

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Discrimination in the Workplace: The Law Is On Your Side

Throughout the history of the United States, our government has passed numerous laws to help prevent, and protect individuals from, discrimination and its damaging effects. Not only can discrimination have a negative impact on one’s employment, but it can also affect an individual’s business and housing situation, as well as his or her access to medical services, education, and other public services. But as much as our nation has attempted to protect the human rights of its citizens through these acts of law, they still fail the many Californians who face discrimination every single day.

What Is Discrimination?

Discrimination occurs when an individual is treated differently based on a set of federally protected characteristics. In the workplace, it often involves an employee not being paid an equal wage, being given menial tasks instead of meaningful ones, or not having the same opportunity for career growth and promotion.

There are nine common types of discrimination in the workplace which may affect you:
♦ Age: Also known as ageism, this often affects older individuals (i.e., an older individual being forced to retire early with an attractive benefits package so that he or she could be replaced by a younger, lower salary employee).
♦ Gender: Also known as sexism, gender discrimination takes place when an individual is treated differently or unfairly due to his or her gender.
♦ Religious: This type of discrimination is the unfair treatment of an individual due to his or her religious beliefs or practices (this also includes forcing an individual to or not to participate in any religious activities).
♦ Race and National Origin: This occurs when an individual is being treated unfairly due to his or her characteristics of his or her birthplace or race (this includes physical, cultural, lingual, or cultural).
♦ Marital Status: Discrimination of this type may hinder someone in the workplace based on whether they are married, single, or other.
♦ Pregnancy: When someone is discriminated against based on pregnancy, she may have been fired because she is pregnant, or because of any childbirth or childbirth-related medical conditions.
♦ Mental or Physical Disability: This includes discriminating against someone because they have a physical, mental and/or learning disability, or chronic illness.
♦ Sexual Orientation: Sexual discrimination takes place when a person is treated unfairly due to his or her sexual orientation (there is no federal law against this, but many states and municipalities prohibit it, including California – see California Government Code § 12940(a)).
♦ Reverse Discrimination: This type of discrimination occurs when members of a majority group are neglected or mistreated to promote someone who is part of a minority.

How Discrimination in the Workplace can Affect You

 

Despite the United States having put legislation in place that is designed to discourage and prohibit these practices, discrimination is still a persistent problem across our nation. Discrimination against anybody in the workplace can have devastating consequences for the victims and their families. Depression, lower income, and lack of job opportunities are just the beginning of how this systemic issue can have a negative impact on your life.

If you or a loved one are suffering from discrimination in the Los Angeles area, the Marcarian Law Firm is here for you. We offer a free legal consultation to all of our clients to ensure that they receive the protection and compensation they deserve. Give us a call toll free at (800) 924-3784 to stand up and protect the rights of you and your family today.

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