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March 28, 2018

Upcoming Changes to Michigan's Prescribing Laws May Offer New Defenses in No-Fault Cases

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No-Fault defense practitioners may have a new weapon in their arsenal for fighting back against health care providers who over-prescribe certain medications to plaintiffs seeking PIP benefits. A package of bills signed into law in December 2017, includes – among other things – a law requiring a “bona-fide prescriber-patient relationship” before a provider may prescribe Schedule II through IV controlled substances, including opiates such as codeine, morphine, hydrocodone, and other medications prescribed to treat pain. This law (Public Act 247; MCL 333.7303a) goes into effect on March 31, 2018. 

“Bona fide prescriber-patient relationship” means a treatment or counseling relationship between a prescriber and a patient in which the prescriber has reviewed the patient's relevant medical or clinical records, and completed a full assessment of the patient's medical history and current medical condition, including a relevant medical evaluation of the patient, and in which the prescriber has created and maintained records of the patient's condition in accordance with medically accepted standards. The law also requires prescribers to follow-up with the patient after prescribing a Schedule II through IV controlled substance.  

Other obligations imposed by these new laws include: 
    • Obtaining parental consent prior to prescribing opioids to minors;
    • A requirement to provide information concerning the potential for abuse of opioids and to obtain signed acknowledgements that patients have received such information;
    • A requirement to obtain and review a patient's Michigan Automated Prescription System (MAPS) report (which tracks controlled substances to assess patient risk of abuse) before prescribing controlled substances; and
    • Complying with limitations on the opioid supply a provider may prescribe a patient treated for acute pain.

While the stated intent of these laws is to address opioid abuse (they come with harsh penalties for providers who violate them), these laws also strongly support the notion that PIP insurers are entitled to take a second look at claims submitted by auto-accident patients with a history of “one-and-done” relationships with providers prescribing certain pain medications. Very often, medical records show spotty relationships between PIP plaintiffs and certain providers. Sometimes, the records reveal that PIP plaintiffs stop treating with physicians who refuse to prescribe opioids and other pharmaceuticals or that physicians prescribe these medications despite evidence that it is not working or without adequately looking into the patient’s medical history. There has always been good reason for No-Fault insurance carriers to refuse to pay certain benefits under these circumstances and these laws may put carriers in a stronger defensive position. These laws also validate the legitimacy of digging into a PIP plaintiff’s suspected drug-seeking behavior when a PIP claim is litigated. This can include issuing subpoenas for a plaintiff’s pharmacy records, pain management records and MAPS records.