Check out the Clark County Bar’s “Pharma Law” issue of COMMUNIQUÉ (September 2018). This issue features content written by members of Nevada’s legal community, including the following articles:
- “The Struggle for Sanity and Sobriety in the Legal Profession” By Alia A. Najjar, M.D., Esq.
- “The New Controlled Substances Prescribing Mandates in AB474 (2017) Creating of a Plethora of Problematic Legal Issues for Practitioners and Patients in Pain” By Weldon (Don) Havins, MD, Esq. and Alia Najjar, MD, Esq.
- “How To Make a Million Dollars in Mass Torts Without Even Trying” By Peter C. Wetherall, Esq.
Also featured in the print and PDF version, readers may access recent court news, updates to bar activities, and other practical content, including these featured pieces:
- “Concerns for Mental Health of Attorneys” By CCBA President John P. Aldrich, Esq.
- “Pitfalls & Solutions” By John A. Curtas, Esq.
- “Team approach yields positive results in the Eighth Judicial District Business Court” By Chief Judge Linda Marie Bell
- “Nevada Appellate Court Summaries” by Joe Tommasino, Esq.
- “Pro Bono Corner: My Selfish Good Deed” By Hillary Gaston Walsh, Esq.
- “Departments: Bar Business, Member Moves, New Members, and Court Changes”
© 2018 The content on this page was originally published in COMMUNIQUÉ*, the official publication of the Clark County Bar Association. (September 2018). All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.
The Struggle for Sanity and Sobriety in the Legal Profession
[PUBLISHER’S NOTE: The Clark County Bar Association (CCBA) provides the opportunity for Nevada lawyers to earn 1.0 AAMH Continuing Legal Education (CLE) Credit for reading this article and completing the accompanying test. For the test and more information, see pages 18-22 of the print and PDF versions of the September 2018 issue of COMMUNIQUÉ]
By Alia A. Najjar, M.D., Esq.
Factors related to substance abuse and mental health disorders in the legal profession
The work culture among attorneys, heavy workloads, stress from working with clients to resolve client issues, personal and family issues, and concurrent psychological illness all lead to heightened potential for substance abuse in the legal profession. Furthermore, the acceptance and prevalence of alcohol use among attorneys for both socialization and to increase business facilitate abuse of alcohol. For many years, the work culture in many law offices was highly permissive of drinking, both with colleagues and clients, including celebrations for winning cases or to relax at the end of the day. Tolerance, concealment, and enabling the use of alcohol by coworkers may unintentionally contribute to drinking problems.
Stress is another major contributing factor in the legal profession contributing to substance abuse and mental health issues. Tight deadlines, high workloads, long hours, and pressure to win cases/obtain favorable outcomes for clients contribute to the stress in this profession, which can take a toll on an attorney’s mental health. Work related burnout is also correlated with drug and alcohol abuse.
How prevalent are substance abuse and mental health issues among attorneys?
Little empirical research had been conducted to determine the prevalence of various mental health and substance abuse issues in the legal profession in the past few decades, and little has been done to address these serious issues until recently. In 2014, due to growing concerns with substance abuse and mental health issues amongst attorneys, the ABA’s Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation commissioned a study of 12,825 attorneys across 19 states entitled “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys”. Their research found that 21 percent of lawyers drink at levels consistent with an alcohol use disorder, as compared to 15 percent of physicians who abuse alcohol. Furthermore, the study found that 28 percent of attorneys have depression and 19 percent have symptoms of anxiety. The highest incidences of these issues are among attorneys in their first ten years of practice. Krill, Patrick R., JD, et al. “Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys.” J. Addict. Med.; Vol. 10, No. 1, January/February 2016.
Another study, entitled “Suffering in Silence,” was a report based upon a survey of law students’ use of drugs, alcohol, and their inclination to seek help. The study involved 3300 students at 15 different law schools. Organ, Jerome, M., et al. “Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns.”Journal of Legal Education, Volume 66, Number 1 (Autumn 2016). The study found that between one quarter and one third of students reported frequent binge drinking, drug use, and/or mental health issues. The study also found that one quarter were at risk of alcoholism, 17 percent suffered from depression, 14 percent had severe anxiety, 23 percent had mild to moderate anxiety, and six percent had suicidal thoughts within the prior year. The study also found that the longer students were in law school, the more anxious they became and the more alcohol they drank.
These studies showed that attorneys and law students who recognized that they had problems were unlikely to seek help due to threats to academic or job status, potential removal or threat to bar admission, social stigma, and believing that they were able to handle the issues themselves.
Impact of substance abuse and mental health disorders
Substance abuse and mental health disorders have broad impact on the legal profession. Impaired attorneys are a risk to themselves, their families, clients, and the profession of law. Impairment may lead to days missed from work, inability to competently perform work as an attorney, interpersonal issues, suicide, and undermines the confidence of the public. Forty to seventy percent of disciplinary proceedings and malpractice actions against attorneys involve substance abuse.
ABA’s National Task Force on Lawyer Well-Being: Creating a Movement to Improve Well-Being in the Legal Profession
The task force was created in August 2016, by the ABA’s Commission on Lawyer Assistance Programs, the National Organization of Bar Counsel (NOBC), and the Association of Professional Responsibility Lawyers (APRL). It includes the ABA CoLAP; ABA Standing Committee on Professionalism; ABA Center for Professional Responsibility; ABA Young Lawyers Division; ABA Law Practice Division Attorney Wellbeing Committee; The National Organization of Bar Counsel; Association of Professional Responsibility Lawyers; National Conference of Chief Justices; and National Conference of Bar Examiners. In August 2017, the Task Force published “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.”
This 73 page report provides a comprehensive plan for improvement of the mental health of attorneys. The five central themes of the report are “(1) identifying stakeholders and the role each of us can play in reducing the level of toxicity in our profession, (2) eliminating the stigma associated with seeking help, (3) emphasizing that well-being is an indispensable part of a lawyer’s duty of competence, (4) educating lawyers, judges and law students on lawyer well-being issues and (5) taking small, incremental steps to change how law is practiced and how lawyers are regulated to instill greater well-being in the profession.” Furthermore, in 2017, the ABA’s House of Delegates adopted a resolution urging law firms, law schools, bar associations, and regulatory agencies to take action to address high rates of substance abuse and mental health issues.
Nevada has and continues to offer support to attorneys facing substance abuse and mental health issues. Since 1985, attorneys in Nevada have been able to contact Lawyers Concerned for Lawyers. This program is confidential and available at no charge. Nevada also offers the Nevada Lawyer Assistance Program, which was created by the State Bar of Nevada in 2013, to provide clinical services to attorneys suffering from substance abuse and/or mental health issues. More information on these programs can be found at https://www.nvbar.org/member-services-3895/nlap/lcl and https://www.nvbar.org/memberservices-3895/nlap/, respectively.
The New Controlled Substances Prescribing Mandates in AB474 (2017) Creating of a Plethora of Problematic Legal Issues for Practitioners and Patients in Pain
By By Weldon (Don) Havins, MD, Esq. and Alia Najjar, MD, Esq.
AB474, which modified the requirements for prescribing controlled substances, was enacted on June 6, 2017 for the purpose of promulgation of regulations by the six affected occupational licensing boards with licensees having prescriptive authority for controlled substances (AB474, Sec 64, 2017). Those Boards are: the Nevada Board of Medical Examiners, the Nevada Board of Nursing (for APRNs/nurse practitioners), the Nevada Board of Osteopathic Medicine, the Nevada Board of Dental Examiners, the Nevada Board of Optometry, and the Nevada Board of Podiatry. One Board adopted a regulation (the Nevada Board of Osteopathic Medicine, regarding mandatory Continuing Medical Education credits for relicensure) prior to the effective date of AB474, January 1, 2018, when AB474 statutory mandates became effective for prescribers.
Unlike other states, which have enacted legislation narrowly tailored to truncate opiate prescriptions, Nevada’s AB474 applies not just to opiates, but to all controlled substances in Schedules II, III, IV for AB474, with Schedule V added by SB59, Sec. 5.5 (2017). Further, the AB474 mandates apply equally to all prescribers of controlled substances, without exceptions for hospice care, palliative care, or cancer pain treatment.
Prescribing a controlled substance NOT for pain mandates the following:
- Consideration of 16 factors, when applicable, before prescribing (NRS 639.23915);
- Accessing the Prescription Database Management Program report before prescribing and every 90 days thereafter for the duration of the treatment (NRS 639.23507.1);
- “Review[ing] the patient utilization report to assess whether the prescription for the controlled substance is medically necessary” (NRS 639.23507.1.a);
- “Determin[ation of] whether the patient has been issued another prescription for the same controlled substance that provides for ongoing treatment using the controlled substance. If the practitioner determines from the patient utilization report or from any other source that the patient has been issued such a prescription, the practitioner shall not prescribe the controlled substance” (NRS 639.23507.1.b); and
- Compliance with the additional requirements for writing prescriptions for controlled substances, including indicating the minimum number of days to consume the controlled substance taking the maximum dose (NRS 453.162.1.e.1) or alternatively, the number of days that the drug is to be used, beginning on the day on which the prescription is filled (NRS 639.2353.2.d), along with the International Classification of Diseases-10 Diagnosis code (NRS 639.2353.2.g).
Many practitioners deride item three as inconsistent with standard medical training because the mandate requires making a medical treatment decision based upon past controlled substance prescriptions reports, rather than on the patient’s current medical condition. Item four is problematic because only the initial practitioner writing for a controlled substance for “ongoing treatment” can refill the prescription. Another provider in the same medical clinic, or an on-call covering provider, is statutorily prohibited from prescribing that controlled substance prescription if “ongoing treatment” is involved.
The Legislative Commission recently approved a regulation of the Board of Pharmacy intended to ameliorate some of the problematic effects of the statutes. (R047-18AP, (2018)). The regulation provides, “the Board [of Pharmacy] does not construe NRS 639.23507 to prohibit a practitioner from increasing the dosage of a controlled substance, or prescribing a controlled substance to continue the same course of treatment, or replacing doses of the controlled substance that have been lost, stolen or destroyed.” These provisions in the regulation appear to directly contravene the statutory mandate prohibiting prescribing a controlled substance written by another practitioner for “ongoing treatment”.
As recently as February 15, 2018, the Supreme Court of Nevada stated,
“we will not hesitate to declare a regulation invalid when the regulation violates the constitution, conflicts with existing statutory provisions or exceeds the statutory authority of the agency or is otherwise arbitrary and capricious.”
(Felton v Douglas County, 134 Advance Opinion 6 (Feb. 15, 2018), citing Meridian Gold Co., 119 Nev. at 635, 81 P.3d at 519 (quoting State, Div. of Ins. v. State Farm Mut. Auto. Ins. Co., 116 Nev. 290, 293, 995 P.2d 482, 485 (2000))). (emphasis added).
Thus, this apparently well-intentioned regulatory provision may be invalid, as it directly conflicts with an existing statute.
Prescribing a controlled substance for pain:
Patient history and physical examination required before writing an initial prescription of a controlled substance for the treatment of pain
Prescriptions for controlled substances to treat pain provide many more mandates. Among those, the prescriber must perform a medical history and physical exam. (NRS 639.23912). A “physical exam” is not within the scope of practice of dentistry, optometry, or podiatry. Nevertheless, the statute is unambiguous in requiring a “physical exam” before writing an initial prescription for a controlled substance to treat a patient’s pain. Board of Pharmacy regulation R047-18AP (2018) provides that the medical history and physical exam must “target” the condition causing the pain of the patient. Does a “targeted” physical exam, which may examine only a small part of the body, render immune from liability a practitioner who “misses” an obvious disease in another part of the body which would have been seen had a normal, untargeted “physical exam” been performed? This seems ripe for a judicial interpretation.
Good faith effort to obtain the medical records of previous providers
The prescriber must also make a “good faith effort to obtain and review the medical records of the patient from any other provider who has provided care to the patient,” document efforts to obtain such medical records, and document conclusions from reviewing any such medical records in the patient’s chart before the initial controlled substance prescription. (NRS 639.23912.1.c) Prescribers treating patients in acute pain, particularly, regard this mandate as “unworkable.” R047-18AP (2018), Sec.5.2., however, allows a practitioner to weigh “the benefit of prescribing the controlled substance without obtaining the medical records.” This regulation defining “good faith” does not appear to contravene the impractical mandate to obtain and analyze all previous medical records before prescribing.
Prescribing a controlled substance for the treatment of pain for more than thirty days
A Prescription Medication Agreement (Agreement) must be obtained to continue treatment of a patient’s pain with a controlled substance beyond 30 days. (NRS 639.23914) The patient must sign the Agreement to continue to receive prescriptions for the treatment of the patient’s pain. Does signing the Agreement under the threat of withdrawal of the pain-alleviating controlled substance constitute signing the Agreement under duress? Since the items in the Agreement are statutorily mandated, does this render invalid an action for declaration of an unenforceable adhesion contract? Who is liable for the agony of the patient’s abrupt controlled substance medication withdrawal? Can a family successfully proffer a claim of wrongful death against a provider if the patient dies in an uncontrolled drug withdrawal precipitated by this statutory mandate? These are more issues ripe for judicial consideration.
How well is AB474 working?
Since the effective date for prescribers of January 1, 2018 through the end of May, there has been a 31% decrease in the rate of opioid prescriptions per 100 Nevada residents. (PDMP Report, June 2018) Opioid prescriptions for less than 30 days (presumably for the treatment of acute pain) has decreased by 48%. Opioid prescriptions for greater than 90 days (presumably for the treatment of chronic pain) has decreased by 38%. Although AB474 impacts prescribing of ALL controlled substances, only reductions in opioid prescriptions has been reported.
Not reported are the number of Nevada residents who have suffered severe pain unnecessarily because providers would not prescribe ameliorating pain medications due to concerns of incomplete compliance with the new extensive prescribing mandates in AB474. Not reported are the numbers of patients who may have committed suicide due to untreated, uncontrolled pain. Not reported are the numbers patients who have turned to out-of-U.S. online pharmacies for their (now illegal) pain medication, or turned to the more highly addicting heroin or illicit fentanyl to control their pain. And not reported are patients who, in an attempt to ameliorate their untreated pain, are destroying their liver from acetaminophen toxicity, and destroying their kidneys from ibuprofen toxicity.
AB474 has accomplished its goal as evidenced by unprecedented reductions in opiate prescribing, but has it done so by reducing inappropriate prescribing?
Weldon (Don) Havins, MD, Esq. currently serves as an associate dean, professor and director medical jurisprudence, professor of ophthalmology, in-house counsel, and Title IX coordinator at Touro University College of Osteopathic Medicine while practicing general ophthalmology part-time. A former law clerk for Judge Allan Earl, Don is immediate past president of the Nevada State Medical Association and member of the Nevada Board of Medical Examiners.
Alia A. Najjar, MD, Esq. is an associate in the Las Vegas office of Wilson Elser where she focuses her practice on civil litigation, including general liability and medical malpractice defense.
How To Make a Million Dollars in Mass Torts Without Even Trying
By By Peter C. Wetherall, Esq.
I’ll be direct, lest anyone thinks the title of this article is a joke. It is not. Thanks to prescription drug and medical device companies’ penchant for repeatedly putting profits before safety, there are literally dozens of massive “mass tort” injury litigations ongoing at any given time in this country. Lawyers who want nothing to do with actually working prescription drug or medical device cases need not do anything more than be sensitive to the fact that these cases are out there, they are often viable in the right hands, and they provoke referral fees by the firms that handle them.
The Nevada Rules of Professional Conduct (RPC), specifically Rule 1.5(e) (Fees), allows referral fees to lawyers who do not actually work a case, stating as follows:
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(2) The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
(3) The total fee is reasonable.
See also Phil Pattee, (former) Asst. Bar Counsel, “Rule 1.5 (Fees): Pass the Case if You Must, But Get a Fee if You Can,” Nevada Lawyer 33 (Mar. 2009)
This past July, a jury in Missouri awarded $4.7 billion dollars to 22 women who apparently proved that asbestos-contaminated talc in Johnson & Johnson’s Shower to Shower bath products gave them ovarian cancer. Each woman was awarded $25 million dollars in compensatory damages, and the rest of the verdict was for punitive damages. Damning internal company documents that came to light in that case were devastating, and sadly not unusual for cases of this type.
The 40 per cent contingent fee on a $4.7 billion verdict is $1.88 billion. For anyone who referred just one of those 22 women to the attorneys who tried the case, a ten per cent referral fee would net that lawyer $8.55 million because $1.88 billion divided by 22 is $85.5 million and then multiplied by .10 is $8.55 million. An extreme example, yes, but one grounded in real life facts.
As a non-mass torts practitioner, you can tap into referral fees from mass torts cases with a phone call or an e-mail. It starts with simply being aware of when an injury may have been the result of a drug or device. Sometimes, that’s not at all clear, other times medical records will reveal a connection between an injury and a drug or device. If you’re not sure but suspect a drug or device-related injury, refer the matter out to someone who practices in this area to sort out.
You need not conduct a thorough investigation and order all relevant medical records before a seasoned mass torts lawyer will pay a referral fee. We’re often given a name, a number, and a description of injury on which to simply follow-up. Of course, adding some value in terms of confirming product ID and proof of damages could speed the referral process along and might sometimes result in a larger referral fee, but it’s not necessary, so you can be as hands-off as you like.
We are fortunate in Nevada to have some of the top mass torts lawyers in the country. First, stalwarts like Peter Chase Neumann, Geoffrey White, and others contributed significantly to the development of favorable and just Nevada case law in the realm of products liability. Next, lawyers like Robert Eglet, Will Kemp, Randall Jones, and Brian Panish have brought nationally-renowned, top-tier trial skills, and the huge verdicts that go with them. In addition to the mass torts icons practicing right here in Nevada, lawyers from around the country are appointed to serve on plaintiffs’ steering committees (“PSC”s) of the various multi-district litigations (“MDL”s) which coordinate and move forward the prescription drug and device cases proceeding in federal court. They have counterparts for cases proceeding in state courts as well. These PSC lawyers are uniquely situated to: 1) assess the overall merits of the particular litigation they’re working on; 2) identify what constitutes viable and non-viable cases (i.e., screening criteria); and 3) co-counsel with other lawyers or accept straight referrals of cases. Just be aware that out-of-state lawyers may be operating under stricter ethical guidelines regarding payment of referral fees than we enjoy here.
As good as our Nevada contingent of mass torts lawyers may be, no one person or firm is entirely familiar with all the pending drug and devices cases out there. However, any experienced mass torts lawyer should be able to get your case to the right lawyer for that particular product – it is a fairly close-knit network of cooperating attorneys.
I recently received a case inquiry from a woman in Reno at her wit’s end. She had consulted with multiple lawyers about a prosthetic hip injury she thought may have been the result of medical malpractice, and no one wanted her case. I quickly determined that her claim was better pursued as a products liability action against the manufacturer of her prosthetic hip, and possibly the manufacturer of the cement used in her surgery. I signed her up, made arrangements to preserve the artificial hip that was being replaced in a revision surgery two days later, and believe she is now on track to obtain compensation for her substantial injuries. If any of the law firms she contacted before mine had reached out to a mass torts practitioner, they would have earned a referral fee for the modest effort.
There is no greater satisfaction in my practice than when I can find a path to recovery for an injured person, or a lawyer calling on their behalf, who could not find a solution through anyone else. This is why I make no apologies for encouraging all of you to keep your eyes and ears open for potential drug and device mass torts cases you are contacted about, even if you have no intention of actually handling one yourself. You can still help these people find justice, they will be forever grateful to you for pointing them in the right direction, and you can earn substantial referral fees in the process.
Peter C. Wetherall, Esq. has practiced throughout Nevada for over 28 years. He has tried over 50 cases to a jury and argued numerous appeals before the Nevada Supreme Court and the Ninth Circuit Court of Appeals. Mr. Wetherall’s primary practice areas include drug and device mass torts and serious injury cases.
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