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The firm is pleased to announce that Nick Jurkowitz and Summer Main have been appointed to the Joint Los Angeles County Bar Association-Los Angeles County Medical Association Biomedical Ethics Committee. The committee reviews issues of biomedical ethics involving the treatment of patients, and will propose guidelines or suggest an alternative approach when dealing with such problems. Nick and Summer will serve on the committee for LACBA’s 2019-2020 bar year.

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Henry Fenton and Nick Jurkowitz successfully represented a physician before the Medical Board of California in the dismissal of an Accusation without having to conduct a hearing. In the case, the Medical Board alleged that an ophthalmologist engaged in gross negligence with respect to her care and treatment of a pediatric patient. The issue was brought to the Medical Board’s attention by a competitor ophthalmologist, and the claims were specious at best. After taking the case over from previous counsel, Fenton Law Group reviewed the case file and learned from the evidence that the case may have been initiated after the statute of limitations had run. Upon that knowledge, the firm engaged in further discovery to obtain specific documents, previously withheld by the Medical Board, to determine if the statute of limitations had indeed run. After reviewing the case file, the firm knew which documents to request and proceeded to request them from the Medical Board. After receiving the firm’s request, the Medical Board withdrew the Accusation and dismissed the case rather than turn over the documents that likely would have shown that the statute of limitations had run. It was a great victory that not only resulted a complete dismissal for the client, but also allowed the client to win the case with minimal expense.

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The firm is pleased to announce that partner Nicholas Jurkowitz has been selected as a 2019 Southern California Super Lawyer “Rising Star.” Additionally, he has also received the honor of being placed on the “Up-and-Coming 100” list of Rising Stars who received the most votes during the peer review process.

One of the most respected rating services in the legal profession, Super Lawyers publishes its Rising Stars honor roll each year after putting candidates through a multiphase screening process consisting of managing partner surveys, nomination by peers, third-party feedback, and identification by a Super Lawyers research team. At the final stage, a mere 2.5 percent of considered candidates are selected as Rising Stars.

To view the “Up-and-Coming 100 Rising Stars” list, click here.

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Summer Main will be speaking at the National LGBTQ Health Conference at Emory University in Atlanta, GA on June 1, 2019. Her presentation, “From a Concept to Reality: Recent developments stemming from the HIV Organ Policy Equity Act,” will discuss the current state of HIV Organ Policy Equity Act (“HOPE”) legislation and the rights of those diagnosed with HIV/AIDS in both seeking and donating organs.
 
While the HOPE Act, first introduced in 2013, seeks to solve the issues involved in organ donation and transplantation for HIV+ patients, the ban on HIV+ organ donation is still only partially lifted, and comes behind a web of red tape. Large-scale clinical trials have been launched, but HIV+ organ donation is still currently limited to only kidneys and livers, and those wishing to participate must be part of an approved study.
 
It’s vital that those living with HIV/AIDS understand their rights with respect to organ donation and transplantation. No longer legally considered “second-class” citizens in the organ-donation realm, HIV+ patients should understand the current regulatory landscape to best advocate for their rights in this new clinical territory.
 
For more information on this presentation, click here.
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Henry Fenton and Summer Main recently obtained an outstanding result for the firm by successfully defending a physician client against claims of gross negligence, repeated acts of negligence, and abetting the unlicensed practice of medicine.

According to the complaint, the client overprescribed controlled substances to a former patient turned employee through an electronic prescription system. The employee then proceeded to sell the prescribed drugs. As a result of Fenton Law Group’s representation, it was successfully established that the employee had effectively stolen the client’s identity in order to steal his electronic prescribing privileges for the purpose of issuing numerous unauthorized and illegal controlled substance prescriptions, and that the client had no knowledge of the wrongful conduct.

In another matter, the physician client treated a patient who had been injured while working on a construction site. After diagnosing the patient with several fractures and a sprain, the client started him on non-prescription medication, and later prescribed Norco tablets. While treating the patient, the client received notice that the patient’s urinalysis test results had tested positive for cocaine, which the patient admitted to using occasionally. After the client discussed the results with the patient, who represented that he would not use cocaine again and later tested negative, the client prescribed the Norco tablets. It was established through expert testimony that the client did not violate the standard of care by prescribing Norco to the patient, because they were prescribed in small amounts and were not prescribed to an addict.

After reviewing the case, the California Medical Board and an administrative law judge found the firm’s client innocent of all charges. Only a reprimand was issued to the client on the basis of vicarious liability for the acts of his employee. Fenton Law Group expects to challenge the issuance of that reprimand, and expects to prevail.

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Conviction Of Insys Execs Will Embolden Gov’t In Opioid Fight

By Chris Villani

Law360, Boston (May 3, 2019, 8:11 PM EDT) ­­ A Boston jury sent a message that will both resonate in the pharmaceutical industry and embolden already aggressive opioid prosecutions when it convicted five former Insys Therapeutics Inc. executives of bribing doctors to prescribe
opioids, experts said after Thursday’s landmark verdict.

The case marked the first successful prosecution of a top executive tied to addictive painkillers, and observers of the closely watched proceeding said it will lead to more corporate bigwigs getting in the government’s crosshairs.

“A prosecutor who is looking at a case with similar facts and similar underlying conduct is certainly going to be more emboldened to press charges, to actually indict and bring a case against similar defendants,” said Nicholas Jurkowitz, a partner at Fenton Law Group who works with health care providers on litigation and regulatory matters.

“People in these types of companies are going to be shocked by this and nervous,” Jurkowitz said. “If I were an executive in one of these companies across the country, I am going to be more concerned and more careful with how we market our products.”

The Boston federal jury found onetime billionaire and Insys founder John Kapoor and fellow former executives Michael Gurry, Rich Simon, Joseph Rowan and Sunrise Lee guilty of engaging in a racketeering conspiracy to funnel bribes to opioid prescribers in the guise of speaking fees.

The defendants had argued that their marketing techniques, while aggressive, were legal and had been conducted because they believed in the company’s fentanyl spray, Subsys. Federal prosecutors said the executives were driven by “greed” to sell as much Subsys as possible, incentivizing doctors to jack up doses or prescribe the powerful drug to people who didn’t need it.

“The concept of paying kickbacks to doctors — it’s sort of typical fodder for these health care prosecutions. What’s different here is that it was such an aggressive statement to opioid manufacturers,” said Michelle Peirce, a Boston white collar defense attorney and co­chair of the litigation practice at Barrett & Singal PC.

Peirce said U.S. attorney’s offices across the country, which some have described as having a near­ militaristic approach to opioid enforcement, were going to aggressively attack the crisis regardless of the outcome in Insys, “but this will embolden them going forward and encourage them to go after these kinds of cases.”

Northeastern University School of Law professor Daniel Medwed said he wouldn’t be surprised to see state­level district attorneys join the federal government in using criminal charges against pharmaceutical executives, now that a jury has shown a willingness to apply the Racketeer Influenced and Corrupt Organizations Act to them.

“It’s jurors viewing pharmaceutical executives as Mafia dons,” Medwed said. “The idea that citizens might be open to the idea of racketeering charges against corporate actors is pretty compelling.”

The U.S. Attorney’s Office for the District of Massachusetts seemed to play into the idea of painting Kapoor in that light, with Assistant U.S. Attorney Fred Wyshak, well known for prosecuting the Boston­area mob, eliciting testimony that Kapoor preferred loyalty from would­be employees, even above integrity.

George Price, a partner at Casner & Edwards LLP and a former special agent with the U.S. Drug Enforcement Administration, said before the trial began in late January that a conviction against someone like Kapoor would be a “game changer” in opioid enforcement, a stance he maintained after the trial’s conclusion more than three months later.

“I think it was and it will be [a game changer], absolutely,” Price said Friday. “You’re starting to see real prosecutions of the executives in these companies. You’re going to have a lot of people wake up today much more concerned than they were yesterday.”

In a statement Thursday after the verdict, Kapoor’s attorney, Beth Wilkinson, noted the length of the deliberations — 15 days — and comments by U.S. District Judge Allison D. Burroughs that the government’s theory of a Controlled Substances Act violation is “pretty darn thin” as proof that the case was far from “open and shut.”

Drinker Biddle & Reath LLP partner and former federal prosecutor Antonio M. Pozos also referenced Judge Burroughs’ skepticism about part of the charge, saying, “It’s interesting whenever a judge decides to weigh in on the merits of the case.”

“It certainly possible this leads to more prosecutions, but these are complicated cases. We need to see what happens with the judge and on appeal,” Pozos said. “This is a significant victory for the prosecution team, but it’s too soon to make a big sweeping declaration.”

In addition to Wilkinson, who said she will “continue the fight to clear Dr. Kapoor’s name,” attorneys for Simon and Lee indicated plans to challenge the verdict.

The post­trial proceedings, especially in light of Judge Burroughs’ comments during last month’s predeliberation acquittal motion, will be interesting to follow to see whether they end up curtailing all or any part of the government’s win, Pozos said.

The case against Kapoor and company has garnered attention from around the country, but some have watched with a keener eye than others. Attorney Richard J. Hollawell is leading a civil suit against Insys, Kapoor and former Insys CEO Michael Babich in New Jersey on behalf of the estate of Sarah Fuller. After a series of car accidents, Fuller was prescribed Subys by a doctor connected to Insys’ controversial speaker program and died a little more than a year later of a drug overdose.

The possibility of putting executives behind bars presents a strong deterrent, Hollawell said, and the successful conviction gives prosecutors confidence to pursue similar cases, such as last week’s charges against New York­based Rochester Drug Co­Operative CEO Laurence Doud, which were the first­ever criminal charges against a drug distributor for selling prescription opioids to pharmacies despite clear evidence the drugs were being diverted for illicit use.

“It is a totally different dynamic,” Hollawell said. “Paying money, they can deal with that because they make $1 billion on a drug and have to pay a fine of a couple hundred million and get to live another day. It’s the cost of doing business for them. But if you’re getting indicted and facing many years in jail, that’s a different story.”

The case is U.S. v. Babich et al., case number 1:16­cr­10343, in the U.S. District Court for the District of Massachusetts.

Editing by Jill Coffey and Alanna Weissman.

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Nick Jurkowitz and Alexandra de Rivera won dismissal of a qui tam complaint against a Southern California pharmacy. Qui tam relator alleged that the pharmacy had submitted false claims for reimbursement to Medicare. The court dismissed the complaint on the basis that relator’s allegations failed to state a False Claims Act violation.

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In an outstanding recent result for the firm, Nick Jurkowitz successfully defended a physician client against an accusation that he had recommended unnecessary surgical procedures to an elderly patient, who had come to him complaining of severe leg pain.

According to the complaint, the firm’s physician client incorrectly diagnosed the patient with venous disease after reviewing results from an ultrasound, and proceeded to recommend a total of six unnecessary abalation surgeries to resolve the patient’s leg issues. The patient then sought a second opinion from another physician, who disagreed with the physician client’s diagnosis and instead suspected the patient’s pain was due to neurological issues. Additionally, the second physician found it “unjustified” that anyone would recommend extensive abalation treatments to a 92-year-old patient with a history of cardiac issues.

Having examined the plaintiff, the second physician wrote a letter of complaint regarding the firm’s physician client to the Medical Board of California, which initiated an investigation. According to the physician client, he made the diagnosis of venous disease after a vascular ultrasound revealed varicose veins in the patient. He then gave the patient a prescription for compression stockings and advised her to return in one month to see if her pain had diminished. However, the patient never returned. The physician client further explained that he had not recommended abalation treatments to the patient, but had explained that certain procedures could be done in the future, including the possibility of abalation, if more conservative measures failed to aid the patient’s discomfort.

After reviewing the physician client’s electronic medical records and hearing expert testimony that supported the his diagnosis, the Medical Board found that the patient had failed to meet her burden of establishing that the physician client engaged in acts of incompetent, gross negligence or unprofessional conduct. It was then ruled that the accusation was dismissed.

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Nick Jurkowitz was a recent panelist for the Los Angeles County Bar Association’s “Hello from the Other Side: What Litigators and Transactional Attorneys Wish the Other Knew.” During the panel, which took place on April 9, 2019, Nick and his colleagues discussed frequently faced legal issues, their own legal war stories, and other interesting anecdotes.

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Henry Fenton recently assisted a doctor client in obtaining a California Medical License after years of retaliatory and unfair criticism threatened to ruin the doctor’s career. During his residency, the doctor in training made a complaint about the quality of nursing at the hospital where he was completing his residency. His record was stellar up until he filed the complaint. After filing the complaint, the doctor was suddenly unfairly criticized, and subsequently applied to and was admitted into a residency program in another state, which he completed with flying colors. The doctor was then offered a position in California, where he needed to obtain his California Medical License. The difficulty was the first residency’s retaliatory and unfair criticism, which was conveyed to the California Medical Board. Any declination of license in California, or more likely, a probationary license would have cost the doctor the position and would have been a permanent stain on his career. Fortunately, on April 2, 2019, with Henry Fenton’s help, the doctor was granted a a full and unrestricted medical license in California.

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