Pharmacists Win

Here is the results of the case that I argued in front of the Court of Appeals-

The Majority Opinion

The Dissenting Opinion

Detroit Free Press Article

Here is a great article from Brian Dickerson of the Detroit Free Press dealing with insurance companies' control of the courts-

BRIAN DICKERSON: Fault lies with justices who pay back insurers
August 8, 2005
BY BRIAN DICKERSONFREE PRESS COLUMNIST

Michigan's shoreline may belong to the people. But its court system, and a majority of the state Supreme Court justices who oversee it, still belong to the insurance industry.
Late last month, even as it was upholding John Q. Public's right to walk the Great Lakes shoreline, Michigan's highest court handed insurance companies a license to defraud consumers.
The court's 4-3 ruling in Rory v. Continental Insurance commands renewed scrutiny of the way candidates for the appellate courts are financed.
Wouldn't it be more efficient, for instance, if insurance companies paid the justices' salaries directly? The companies would save the hassle of laundering payments through the soft-money campaign finance machine, and their water carriers in Lansing could dispense with the charade of judicial impartiality.
Shirley Rory, 53, and her elderly mother, Ethel Woods, both sustained neck and back injuries in a May 1998 car accident in Detroit. Fifteen months later -- well within the three-year time limit established by Michigan statute -- Rory and Woods sued Charlene Haynes, the driver of the other vehicle, for damages arising from their injuries.
The police report of the accident doesn't indicate whether either driver was insured. So it wasn't until several weeks after their lawsuit had been filed that Rory and Woods learned Haynes was driving bare.
Under Michigan's no-fault law, auto policyholders who carry uninsured motorists coverage can collect damages from their own insurance companies if an uninsured driver permanently injures them.
But in March 2000, when Rory filed an uninsured motorist claim against her insurer, Continental Insurance Co., the company balked, explaining that Rory's claim, though within the statutory time limit, was beyond the one-year time window her policy with Continental allowed.
For more than a century, Michigan courts have demanded that contractual limitations like the one contained in Rory's auto policy be reasonable. Everyone might agree that a 60-second time limit on uninsured motorist claims would be unreasonable. The question in Rory's case was whether the twelve-month limit in her auto policy made it practically impossible for her to collect on the uninsured motorist coverage she'd purchased.

A tradition of vigilance

In challenging Continental's refusal to pay, Rory had another venerable legal tradition on her side: the courts' long-standing distinction between negotiated contracts (like the one between Steve Yzerman and the Red Wings) and take-it-or-leave-it contracts like the ones most auto policyholders sign.
Michigan courts have long been skeptical of the latter, whose terms are typically skewed in the insurer's favor. Rory's lawyer, David Turfe, argued that a one-year time limit on uninsured motorist claims was unreasonable by any reckoning, because it provided too little time for policyholders like Rory to establish that their injuries were permanent or to discover that the other drivers were uninsured.
Under the heightened scrutiny to which one-sided form contracts were traditionally subjected, Turfe assured Rory a judge was certain to disallow the one-year time limit.
A Wayne County Circuit Court judge and three Michigan Court of Appeals judges agreed with Turfe's reasoning and ordered Continental to process Rory's uninsured motorist claim.
The one-year time limitation buried in Rory's policy, all four judges agreed, would effectively preclude most policyholders from collecting the coverage they had paid for, no matter how clearly an uninsured motorist was responsible for their injuries.
And that's where the matter stood -- until late last month, when four Republican Supreme Court justices whose re-election campaigns were heavily financed by insurance companies and other deep-pocket defendants turned decades of legal precedent on its head.
Before then-Gov. John Engler appointed him to the appellate bench in 1995, state Supreme Court Justice Robert P. Young Jr. served as general counsel to AAA Michigan, the state's largest auto insurer.
Since his elevation to the state's highest court, Young and three other justices appointed to the appellate bench by Engler -- Clifford Taylor, Maura Corrigan and Stephen Markman -- have collaborated in a series of 4-3 rulings whose combined effect has been to sharply curtail insurers' liability.
(Probably you've already noticed the resulting reduction in your auto policy premiums. Hahahahahaha!)
But the precedent-shattering principles enshrined in Rory v. Continental represent the Republican majority's most brazen assault yet on consumer rights.
"Unambiguous contracts, including insurance policies, are to be enforced as written," Young wrote in the court's majority opinion. "Judicial determinations of 'reasonableness' are an invalid basis upon which to refuse to enforce unambiguous contract provisions."
Elizabeth Weaver -- the only Republican justice to reach the appellate bench without Engler's sponsorship -- explained the significance of Young's ruling in one of three impassioned dissents.
In upholding the unreasonable one-year limit on claims, "the majority is eliminating over five decades of precedent that created specialized rules of interpretation and enforcement for insurance contracts," Weaver wrote.
Weaver's colleague, Justice Marilyn Kelly, was even more emphatic. "The burden of this rule is carried by the average individual who has little, if any, bargaining power when purchasing insurance," Kelly wrote. "The choice made by the majority regresses our judicial system by decades, if not centuries."
For consumers, the import of Rory's defeat is clear:
Read the small print. If you want a reasonable insurance contract, expect to pay an attorney several hundred dollars to scrutinize it.
Above all, don't look to Michigan's highest court for protection; it's already busy protecting somebody else.

Contact BRIAN DICKERSON at 248-351-3697 or dicker@freepress.com..

Here is the link to the article

Patient Safety and Quality Improvement Act

I just received this from the ASPL and wish to pass it on to you. Thanks to ASPL member Ed Rickert for writing the following-

This past Friday, July 29, President Bush signed into law the Patient Safety and Quality Improvement Act. The Act provides for the creation of Patient Safety Organizations, which will collect voluntary reports from providers, analyze the data and recommend steps to avoid future mistakes. The Act will cover medication errors, and includes pharmacies and pharmacists as providers. Most importantly, the Act provides that reports will be treated as privileged and confidential, and shall not be:

(1) subject to a Federal, State, or local civil, criminal, or administrative subpoena or order, including in a Federal, State, or local civil or administrative disciplinary proceeding against a provider;
(2) subject to discovery in connection with a Federal, State, or local civil, criminal, or administrative proceeding, including in a Federal, State, or local civil or administrative disciplinary proceeding against a provider;
(3) subject to disclosure pursuant to section 552 of title 5, United States Code (commonly known as the Freedom of Information Act) or any other similar Federal, State, or local law;
(4) admitted as evidence in any Federal, State, or local governmental civil proceeding, criminal proceeding, administrative rulemaking proceeding, or administrative adjudicatory proceeding, including any such proceeding against a provider; or
(5) admitted in a professional disciplinary proceeding of a professional disciplinary body established or specifically authorized under State law.

The full text of the Act can be accessed at http://thomas.loc.gov/cgi-bin/query/C?c109:./temp/~c109qP5jwP. An analysis of the new law will be published in the next issue of RX Ipsa Loquitor.

Rite Aid Suit

Attention Michigan Rite Aid Pharmacists-

If you work or have worked for Rite Aid in Michigan, now is the time to get in on my lawsuit to get overtime pay that Rite Aid failed to pay you. Yes, you are likely entitled to overtime pay. If this applies to you, call me before the statute of limitations runs out. My number is 586-598-4650.

Do it now before it's too late.

New Summer 2005 Newsletter

Here is the Summer 2005 Newsletter. It is currently being printed and sent out. If you wish to receive it through the mail, please e-mail me your address.

Summer Newsletter

Update on July 6 Oral Arugment in Grand Rapids

I argued on behalf of defendant Walker Street Pharmacy before a really engaged appelate court panel. All 3 judges had intelligent, hard hitting questions for both sides. I feel confident that I defended our profession ably. It's impossible to predict from the questionning how the court is inclined. So check back and you'll know the result as soon as I do. If our side loses, it will forever change the way you practice pharmacy.

Duty To Warn

Kudos to the National Association of Chain Drug Stores for this state-by-state compilation of cases regarding pharmacists' duty to warn.

Duty To Warn

Archived "The Pencak Report"

Here is the first release of the archived The Pencak Report. This is the Fall 2004 issue. Expect the new Summer 2005 issue to be sent soon. If you are interested in receiving a newsletter through the mail, please e-mail me your address.

Fall 2004

Walgreen Suit

A suit filed in Illinois by 11 black, current and former, Walgreen employees alleges discrimination from management. The plaintiffs claim that the company has directed blacks to work in stores made up of mostly blacks and poorer customers and "blacks are routinely denied and passed over for promotions despite their seniority, work experience and/or qualifications". The lawsuit, which is seeking class action status, is pursuing monetary damages and a court order to prevent future discriminatory tactics.

For Full Text

Major Change?

This ruling in favor of the pharmacist is challenged on appeal. It is likely to overturn or solidify existing Michigan pharmacy law duty to warn. What will happen? I will be participating in oral arguments on July 6th. In the meantime, please read this extremely well-written opinion by Harvard educated Circuit Judge, the Honorable Dennis C. Kolenda.

Opinion