September 8 2018

The Cosmopolitan of Las Vegas

A Call to Action for the Frontline Legal Practitioner
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Opioids—a small word packing a major punch. Especially in today’s onslaught of litigation involving healthcare professionals, and in the wave of new regulations and “guidelines” concerning the use of opioids to treat pain.

Many lawsuits, in fact, appear to be criminalizing the practice of medicine by focusing on prescriber conduct and prescriptions for opioids that exceed a certain dose, or days’ supply, or when combined with other medication. Many frontline healthcare professionals who DO NOT run pill mills are caught up in the litigation frenzy, and must confront the incredible challenge of trying to justify their medical decision-making in the face of ever-changing and inconsistent standards pertaining to the long-term use of opioids to treat pain.

The elevation of what traditionally has been referred to as negligence or unprofessional conduct to “criminal prosecution” demonstrates the need for frontline legal practitioners to understand and ultimately stand up against the ongoing conflation of medical and legal standards in all forms of civil, criminal, and administrative actions against practitioners who treat pain with opioids.

Expand Your Knowledge—and Your Practice

We invite you to join PAINWeekJD (PWJD) and its roster of medical and legal faculty—including Jennifer Bolen, JD;  Stephen J. Ziegler, PhD, JD; Michael R. Clark, MD, MPH, MBA; and Douglas L. Gourlay, MD, MSc, FRCPC, FASAM—as they delve into the landscape of litigation against opioid prescribers from both the attorney and physician perspective. The PWJD faculty will be joined by frontline attorneys who have fought these battles on behalf of pain management professionals and know what it’s like to face opposing medical experts who claim to be operating with the same playbook regarding opioid prescribing standards.

The curriculum will include a series of didactic presentations, case examples, and a survey of the different legal and pain management prescribing standards used in administrative, civil, and criminal litigation. The full-day program will examine (a) specific issues regarding pain management laws, regulations, and policies; (b) standards of care and expert witness testimony unique to opioid prescribing and chronic pain management; and (c) special issues presented when the pain practitioner is accused of “getting the patient addicted” or “causing the overdose death of the patient.” Participants will leave PWJD with tactics and strategies for defending the frontline pain practitioner.

Neither healthcare practitioners nor their legal counsel fare well when caught unprepared for the legal battle surrounding opioid prescribing, addiction, and opioid overdose events—fatal and nonfatal. There is much the prescriber and his/her legal counsel can do to both proactively address medical decision-making involving opioids and to defend against allegations of inappropriate prescribing. While prescribers cannot control what their patients do once they leave the medical office, working with their attorneys they can establish a safe framework for opioid prescribing, including a proper response when something goes wrong.

We encourage our PAINWeek physicians and allied healthcare professionals to invite their attorneys to attend this inaugural PWJD conference.

Target Audience
General business counsel to pain management professionals (physicians, nurse practitioners, physician assistants, pharmacists), and allied attorneys, including litigation counsel.

Learning Objectives
After attending this conference, participants will be able to:

  • Identify critical legal issues in federal and administrative state matters involving inappropriate controlled substance prescribing and healthcare fraud allegations
  • Formulate legal questions relating to the applicable standard of care for prescribing opioids to treat pain
  • Implement effective strategies for working with legal and medical subject-matter experts
  • Describe key principles of licensing board prescribing regulations and guidelines and how they relate to expert witness testimony on standard of care issues in federal and state administrative and criminal cases against healthcare professionals
  • Define addiction and identify common themes in opioid overdose cases
  • Create a checklist of items for use when evaluating cases against physicians and allied healthcare professionals involving addiction and opioid overdose causation claims

Legal Faculty
Jennifer Bolen, JD
Brett M. Feldman, JD
Renee Howard, JD
Michael M. Mustokoff, JD
Stephen Ziegler, PhD, JD

Medical Faculty
Michael R. Clark, MD, MPH, MBA
Douglas L. Gourlay, MD, MSc, FRCPC, FASAM

Pharmacy and Toxicology Expert
Jeff Fudin, PharmD, DAAPM, FCCP, FASHP

Continuing Legal Education Accreditation
ALM has been certified by various CLE boards as an Accredited Provider. This program will be accredited in multiple jurisdictions. Participants can receive up to 7.25 credits, which includes 3 in mental health/substance abuse. The categories of credits a participant can receive are subject to the rules and regulations of the individual CLE boards. For state specific information please contact ALM at (212) 457-7912.

Program Agenda



8:00 am – 8:30 am

  • Introduction
    1. Objectives
    2. Pain terminology
      1. Acute vs chronic
      2. Nociceptive vs neuropathic
      3. Analgesic classes (adjuvants, NSAIDs, opioids, nonopioids, topicals)
      4. Delivery systems
    3. The problem with pain and opioids as the center of a battle

8:30 am – 9:30 am

  • State of Pain Law 101—Federal and state laws, regulations, and medical board materials governing pain clinics and controlled substance prescribing; also including Medicare Part D investigations
    1. The federal legal framework
      1. Administrative
      2. Criminal
      3. Medicare regulatory authority under Part D
    2. The state legal framework
      1. Administrative (licensing boards and state regulation of pain clinics)
      2. Support network for lawsuits against pharmaceutical companies and physicians

9:30 am – 10:30 am

  • Standard of Care—The past, present, and future of standard of care issues in the courtroom: dealing with the un-level playing field; suggesting how to take back your turf in opioid prescribing litigation. Answering: Where are we today? What’s considered legitimate medical purpose and usual course of professional practice?
    1. Negligence, reckless disregard, knowing and intentional conduct: where’s the beef?
    2. A ride on the opioid pendulum: changes in opioid prescribing guidance and impact on cases
    3. Case examples: Dealing with the THEN and NOW of defending pain

10:30 am – 10:45 am

  • Break

10:45 am – 12:00 pm

  • Expert Witness Issues and the Benefit of Subject Matter and Legal and Medical Experts

12:00 pm – 1:30 pm

  • Lunch Break

1:30 pm – 2:30 pm

  • Are They All Addicts? The Role of the “A” Word in Inappropriate Prescribing Cases
    1. Definition of addiction from a clinical perspective
    2. How the term “addiction” is used in legal actions against prescribers
    3. The intersection of pain and addiction, and a checklist for evaluating medical records and prescribing practices
    4. Case examples: understanding the difference between addiction and physical dependence, and using it to your advantage

2:30 pm – 3:30 pm

  • Overdose Cases/Special Issues
    1. Dead is dead, right? The Burrage case and legal causation standard when inappropriate controlled substance prescribing cases also involve opioid overdose
    2. Examining the patient’s behavior inside and outside the examination room
    3. Using a forensic toxicologist and a checklist for evaluating overdose cases
    4. A few tips on “when something goes wrong” or your client gets a letter from the state medical board or experiences a federal search warrant
    5. Case examples: prepare for battle

3:30 pm – 4:30 pm

  • Fraud + Inappropriate Prescribing: Fighting the battle on multiple fronts
    1. Urine luck vs urine trouble
    2. Bad company: a look at problematic business arrangements and inappropriate prescribing allegations
    3. Case examples

4:30 pm – 4:45 pm

  • Closing remarks

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