Whitelaw at MDTC: how to avoid, defend opioid scrip claims against physicians


by Cynthia Price
Legal News

It is not lost on Brian Whitelaw of Grand Rapids law firm Aardema Whitelaw that a good way for a physician to avoid coming before a state licensing agency for contributing to a patients’ overdose death is not to prescribe opioids.

At the same time, he recognizes that it is natural for a doctor to want to alleviate the pain his or her patient experiences.

So, at last Friday’s education session held during the MDTC Winter Meeting in Novi, two pieces of advice on Whitelaw’s to-do list for doctors were: “Refer non-compliant patients to pain management,” and “Refer compliant patients to pain management.”

“Tell your doctor clients to refer patients away if they have any problems,” he told the crowd of approximately 35 attorneys. “Pain management specialists have the system down pat.”

Though a percentage of overdose deaths in what has been described as an opioid epidemic are from non-prescription drugs such as heroin, there has been an increase in deaths across the board.

 According to statistics Whitelaw presented, drug overdoses are the leading cause of injury death here in the U.S. There were over 47,000 such deaths in 2014, and about 60 percent of those were related to prescription drugs (though not exclusively opioids).

The Centers for Disease Control (CDC) reports that the increase in specifically opioid deaths increased 14 percent over that time period, from 7.9 per 100,000 in 2013 to 9.0 in 2014.

The number of drug-related emergency room visits is also on the rise, increasing, for example, 117 percent  from 2005 (168,379) to 2011 (366,181).

The Substance Abuse and Mental Health Services Administration reports that of the 21.5 million Americans 12 or older with a substance use disorder in 2014, 1.9 million had a substance use disorder involving prescription pain relievers and 586,000 had a substance use disorder involving heroin.

Many are calling for a complete shift in the culture around prescribing pain-

killers, and CDC along with U.S. Surgeon General Vivek Murthy have asked doctors to join a “Turn the Tide” campaign.

Whitelaw included the Surgeon General’s letter and a brochure with guidelines for how doctors can change their prescribing regimen with the materials in his presentation.

He gave the attorneys a number of other resources on how to help their doctor clients avoid licensing actions, and what to expect if one is initiated.

A litigator who concentrates on medical malpractice defense, Whitelaw is a good choice as presenter, both because of his specific expertise and because he has a long history of writing and presenting about medical legal issues.

He has been a sought-after presenter, often to medical professionals, at least since he published in the Michigan Bar Journal in 1987 on tort reform. He was a featured speaker on that subject at the State Bar of Michigan annual meeting in 1994.

A cum laude graduate of Michigan State University who received his J.D. from Detroit College of Law, Whitelaw  was a founding partner, in 2001, of the now-five-attorney Aardema Whitelaw, a medical malpractice and insurance defense firm on Cascade Rd. Prior to that he worked as an attorney for City of Troy and a senior associate at a Detroit firm.

He has appeared on the Super Lawyer list for Medical Malpractice Defense every year since 2007, and is a member of the invitation-only American Board of Trial Advocates. His articles have appeared in print and online, including a blog for the Physician Litigation Resource Center and several times in Medscape from WebMD.

At the MDTC session, Whitelaw started out by asking a couple tables of participants to stand up, and noted that the number (12) was approximately equal to the number of those who had died from overdose deaths in the three hours since the MDTC conference had started.

He explained “follow-through” addiction. “If people get addicted, prescription drugs can be kind of expensive. It’s cheaper to buy street drugs, and that’s one reason heroin addiction is increasing.” A report by the American Society of Addiction Medicine says, “Four in five new heroin users started out misusing prescription painkillers,” and that 94% of respondents in a 2014 survey of people in treatment for opioid addiction said they chose to use heroin because it is cheaper.

Whitelaw advised attorneys to tell their physician clients to set up a pain management contract with their patients if they do go ahead with prescribing opioids, and never to let patients get away with violating the contract. — even once.

He drove home the fact that sometimes even good, conscientious physicians can err when they fail to avail themselves of all  significant information about patients’ drug use. The Michigan Automated Prescription System (MAPS), accessible online, has data on dispensing of controlled substance prescriptions, which can indicate patterns that should result in a red flag for physicians.

The heart of Whitelaw’s presentation was on helping clients through LARA (Michigan Licensing and Regulatory Affairs) actions.

He noted that many physicians under investigation never know it. Triggers for a potential action are varied, but having a patient die from a prescription drug overdose is likely to arouse suspicion.   Investigations are conducted under MCL 333.16221, with standards that some regard as vague, such as “failure to provide due care.” Whitelaw said the highest percentage of complaints he has seen are for incompetent treatment and doctors’ own inappropriate personal behaviors, not for wrongly prescribing.

Disciplinary actions range widely, from temporary suspension to permanent revocation, from small to large fines.

He suggested that attorneys accompany their physician clients every step of the way. He cautioned that something called a  compliance conference is really a settlement conference, and lawyers should come prepared.

The MDTC (formerly Michigan Defense Trial Counsel) winter meeting included a full schedule of sessions on other topics, as well as exhibitors and networking. Attendees at a luncheon heard from the two Respected Advocates for 2016, Jules Olsman and Michael Janes.