This article is an update to “Remote Patient Monitoring” published in the Fall 2023 edition of the Alabama Medicine Magazine. The U.S. Department of Health and Human Services Office of the Inspector General (“OIG”) issued a Consumer Fraud Alert related to Remote Patient Monitoring (“RPM”) on November 21, 2023. This alert provided insight into RPM practices subject to scrutiny by OIG.
OIG indicated that legitimate RPM includes the use of medical devices like scales, glucose monitors, blood pressure cuffs, cardiac rhythm devices, and other like equipment to continuously monitor patients with chronic conditions for medical anomalies within the comfort of the patient’s home. However, there must be a medical necessity for such services for bills submitted for RPM services to withstand enforcement scrutiny from OIG. Accordingly, to minimize the risk of enforcement actions, providers should ensure that the need for such services is present before setting up a patient with an RPM device.
Additionally, OIG indicated that fraudulent use of RPM occurs where billing is submitted for set-up, patient teaching, and monthly monitoring of data and the RPM equipment does not meet the statutory standards. For example, fraudulent RPM billing occurs when bills are submitted for RPM services, but RPM equipment either (i) is not sent to the patient or (ii) is sent, but is not FDA-approved. Providers should be sure that all equipment provided to their patients meets the requisite requirements for FDA approval before submitting bills for RPM services. Additionally, providers should ensure that patients have RPM equipment and appropriately use the equipment to meet coding requirements before billing for any RPM services provided.
When setting up RPM services, OIG has addressed some suspect characteristics of RPM that providers should consider. These characteristics include (i) signing patients up for RPM services through call centers; and (ii) failing to include necessary patient consents for RPM services in patient files. With these characteristics in mind, there are steps that providers can take to lessen the risk of scrutiny from OIG. First, providers should be sure to maintain policies and procedures to ensure that the proper documentation of patient consents is kept in appropriate files. Additionally, as a best practice, providers should only set up RPM services after establishing a patient-provider relationship, and avoid, to the extent possible, using call centers to set up RPM services for patients.
Semagludtide, the drug contained in medications such as Wegovy, Ozempic, and Rybelsus, has received significant attention over the past few months as those medications have grown in popularity for weight loss. Although most publicity and warnings of potential side effects are directed to those taking the medications, prescribers, and providers should also be mindful of the practitioner pitfalls associated with the drug. In fact, we are already seeing lawsuits being filed by patients claiming they were not properly warned about harsh side effects.
In September 2023, the Alabama Board of Medical Examiners (ABME) issued a press release titled “Concerns with Semaglutide and other GLP-1 Receptor Agonists.” The press release states that there is mounting concern related to the prescribing and compounding of semaglutide and other glucagon-like peptide-1 receptor agonists. With greater concerns typically comes greater scrutiny. In the release, the ABME reminds providers that Wegovy is the only FDA-approved drug for obesity whereas the other medications are approved only for Type 2 Diabetes. However, these drugs have seen increased off-label use for weight loss.
Because of the potential for off-label use, the ABME also noted that prescribers should be mindful of the potential for “improper evaluation for and prescribing” of the drug. Although off-label use may be appropriate, a practitioner must ensure that he/she has properly documented the medical necessity of the drug for a particular patient as well as obtaining informed consent from the patient. Providers should also avoid accepting any type of remuneration or anything of value for prescribing these medications, regardless of whether the provider is billing a third party for services.
Other concerns cited by ABME include the availability of semaglutide resulting in increased compounding of the drug. Specifically, the ABME cautioned practitioners against improperly compounding drugs in physician offices or using “semaglutide salts” in compounding that do not meet federal requirements. Not only did the ABME cite this as a concern, but the Alabama Pharmacy Association noted that the Alabama Board of Pharmacy (ALBOP) had received numerous inquiries related to compounding semaglutide, prompting the ABOP to comment on the appropriateness of such compounding. According to the ABME press release, the ALBOP notified all pharmacies and pharmacists that if compounding, when permitted by law, “the use of semaglutide salts, the use of any non-pharmaceutical grade active pharmaceutical ingredient (API) or one not produced by an FDA-registered establishment, is prohibited.” At the time of the press release, there were no compounding pharmacies in Alabama receiving pharmaceutical-grade API to compound semaglutide.
In addition to state agencies weighing in, the FDA has also published information related to compounding semaglutide. The Federal Food Drug and Cosmetic Act prohibits pharmacies from compounding drug products that are “essentially copies of a commercially available drug product.” Additionally, compounded drugs are not FDA-approved. However, when a drug is in shortage, compounders may be able to prepare a compounded version of the drug if the compounding pharmacy can meet certain requirements. In May 2023, Ozempic and Wegovy were both listed on the FDA’s Drug Shortage list, and as of the writing of this article, some presentations of both drugs remained on the list as “limited availability” due to “demand increase for the drug.” But just because the drug is listed on the shortage list does not give compounding pharmacies carte blanche. The FDA noted that some compounding pharmacies were using salt forms of semaglutide, which have different active ingredients than those in the approved drugs, and it warned health care professionals that it is “not aware of any basis for compounding a drug using semaglutide salts that would meet federal requirements.” The FDA also warned of potential counterfeit drugs.
Conclusion
As highlighted above, the prescribing and use of semaglutide has gained increased scrutiny from both state agencies and regulatory authorities, and health care professionals should be mindful of how this scrutiny may impact their practice.
Angie Smith is a Partner at Burr & Forman LLP practicing exclusively in the firm’s Health Care Practice Group. Angie may be reached at (205) 458-5209 or acsmith@burr.com.
The Medical Association of Alabama hosted its annual meeting on November 18-19, 2023, at the Hyatt Regency Birmingham-The Wynfrey Hotel in Birmingham, Alabama. The focal point of this gathering was the renowned “Prescribing and Pharmacology of Controlled Drugs Conference,” marking the 15th year of its occurrence and the 45th presentation of the 12-hour Prescribing and Pharmacology course. This conference attracted a substantial attendance of around three hundred healthcare providers from across the southeastern United States, including Alabama, Florida, Georgia, Louisiana, Tennessee, and Texas.
The conference served as a vital platform for healthcare professionals to delve into crucial aspects of prescribing practices and the pharmacology of controlled substances. With its long-standing tradition, the event has consistently provided an opportunity for medical practitioners to stay abreast of the latest developments in the field and enhance their understanding of safe and effective prescribing methods.
At the conference, we paid tribute to three individuals who have devoted extensive efforts to combat the opioid crisis in Alabama, Dr. Buddy Smith, Dr. Jerry Harrison, and Dr. Steven Furr. Regrettably, Dr. Furr was unable to be with us due to his demanding role as the newly elected President of the American Academy of Family Physicians.
It is often said that noticing an issue is easy, but taking decisive action is the real challenge. Over the course of the last fifteen years, these gentlemen have dedicated forty-seven weekends away from their families to educate healthcare providers on the judicious prescribing of controlled medications. This commitment goes beyond the weekends, as they have also invested countless hours on the planning committee, ensuring not only the coverage of highly relevant topics but also the selection of expert faculty for these courses. Since 2009, over ten thousand prescribers in Alabama have successfully completed the Prescribing course.
We also recognized Richard Tucker, a Consultant with Drug Education Consulting Group in Huntsville, NC, and a former U.S. DEA Special Agent for his outstanding contributions. The association bestowed upon him an award in acknowledgment of his eight years of dedicated service in sharing his time and knowledge at the Prescribing of Controlled Drugs Conferences. Tucker’s expertise and commitment have played a pivotal role in enhancing education and awareness surrounding controlled substances, reflecting his significant impact on the medical community’s understanding and responsible prescribing practices.
We were honored to commemorate their achievements. According to recent data released by the American Medical Association, the total opioid prescriptions dispensed in Alabama during their tenure have decreased by 43.7%, and the total dosage strength, measured in morphine milligram equivalents, has decreased by 55.4%. These statistics bear witness to the tangible impact these individuals have had on alleviating the opioid crisis in Alabama.
On behalf of the Board of Censors of the Medical Association of the State of Alabama, and in sincere appreciation of their many years of dedicated leadership, service, and commitment to addressing the opioid crisis in Alabama, we were honored to present them with these well-deserved awards.
On October 30, 2023, the Department of Health and Human Services (“HHS”) released a proposed rule establishing penalties against healthcare providers who violate the information-blocking rules implemented under the 21st Century Cures Act. The information blocking rules prohibit a healthcare provider, among other “actors” as defined in the rules, from taking any action that is likely to interfere with the access, exchange, or use of electronic health information contained in a designated record set (“EHI”), unless the action is required by law or an applicable legal exception is met. The information blocking rules apply to any request for EHI from any requestor, not just a request to access information from patients.
Currently, there are no penalties against healthcare providers for violating the information-blocking rules. The latest information-blocking proposed rule aims to change that by allowing for payment disincentives for healthcare providers who violate the information-blocking rules. For eligible hospitals and critical access hospitals, the disincentives include not being able to be deemed a meaningful EHR user in the applicable EHR reporting period. For eligible individual providers, the disincentives include not being able to be deemed a meaningful user of certified EHR technology in a performance period and therefore receiving a zero score in the Promoting Interoperability performance category of MIPS. For accountable care organizations and their participants, the disincentives include not being able to participate as an ACO for at least a year.
“HHS is committed to developing and implementing policies that discourage information blocking to help people and the health providers they allow to have access to their electronic health information,” said HHS Secretary Xavier Becerra. “We are confident the disincentives included in the proposed rule, if finalized, will further increase the appropriate sharing of electronic health information and establish a framework for potential additional disincentives in the future.”
The proposed rule regarding the information blocking disincentives is currently available for public comment. Written or electronic comments must be received on or before January 2, 2024.
Kelli Fleming is a Partner at Burr & Forman LLP practicing exclusively in the firm’s Health Care Practice Group. Kelli may be reached at (205) 458-5429 or kfleming@burr.com.
As the professional association for some 7,000 physicians of all specialties in Alabama, the Medical Association of the State of Alabama exists to serve, lead, and unite physicians in promoting the highest quality of healthcare for the people of Alabama through advocacy, information, and education
General Policies Supported
The Medical Association supports the physician-led health team model and maintaining the highest standards for medical care delivery across all specialties of medicine. The Association supports prohibiting deceptive healthcare advertising and requiring health professionals identify their license to patients.
The Association supports physician autonomy in patient care and medical practice decisions, fair reimbursement for services and reducing the volume of administrative tasks required by insurers which increase annual health spending and negatively impact patient health.
Further, the Association supports increasing health insurance options for Alabamians, including expanding Medicaid. The Association supports increasing access to quality mental health care and continued state funding for the Maternal Mortality Review Committee and the Infant Mortality Review Committee. Recognizing the long-term effects of social determinants of health on individuals, families and ultimately communities, the Association supports comprehensive solutions to addressing these challenges, with emphasis on pipeline programs, tax credits and loan forgiveness proposals benefitting rural and underserved areas.
Finally, by ensuring medical liability environment stability and pursuing further civil justice reforms, the Association believes Alabama can continue to attract highly-qualified physicians.
Specific Policies Supported
For 2024, the Association specifically supports:
Streamlining the prior authorization process for physicians and patients
Initiatives to grow and support Alabama’s physician workforce
Increasing access to physician-led care in rural and underserved communities
The ability of medical practices to set patient practice policies
Increasing physician representation on state healthcare boards, task forces and committees
General Policies Opposed
The Medical Association opposes any scope of practice expansion for non-physicians that would fracture the physician-led health team model, lower quality of care and/or increase costs. The Association also opposes any interference with the physician-patient relationship and attempts to reduce a physician’s autonomy in patient care or medical practice decisions.
The Association opposes legislation or other initiatives that could increase lawsuit opportunities against physicians, including the establishment of statutory standards of care or any statutory dictums for medical care delivery. The Association also opposes any state-level increase of requirements for Maintenance of Certification. Finally, the Medical Association opposes tax increases disproportionately affecting physicians.
Specific Policies Opposed
For 2024, the Association specifically opposes:
New lawsuit opportunities against physician employers and medical practices over employment policies
Efforts to reduce and/or politicize physician involvement in health regulatory affairs
Expanding Prescription Drug Monitoring Program (PDMP) access for law enforcement
Statutory requirements for mandatory Prescription Drug Monitoring Program (PDMP) checks
Justice Gregory Carl Cook (“Greg”) was elected to the Supreme Court in 2022. Justice Cook is the son of Gene and Dottie Cook and is from Florence, Alabama. From an early age, his parents instilled in him faith, the value of hard work, and the importance of public service.
Justice Cook attended Duke University on an Air Force ROTC scholarship, graduated in 1984 magna cum laude, and was elected to Phi Beta Kappa. He then served our country in the United States Air Force, reaching the rank of Captain. Justice Cook received his law degree from Harvard Law School in 1991, magna cum laude, where he served as an Executive Editor of the Federalist Society’s Journal of Law and Public Policy.
After finishing law school, Justice Cook moved back to Alabama and practiced law at Balch & Bingham for over 31 years. He handled a wide variety of matters in over 40 of Alabama’s 67 counties and in over 15 different states, including jury trials, bench trials, and arbitrations. A large part of his practice involved complex commercial litigation including a number of class actions.
Can you tell us a bit about your early life and upbringing? Where were you born and raised?
My Dad was a member of the Air Force, so we spent a good deal of time moving from place to place. But his home – and mine – has always really been Florence, Alabama.
What motivated you to pursue a career in law and ultimately run for office?
I love the law. It is how our society avoids chaos and fights in the street; it is how we resolve disputes peacefully; it is how people can own property and build businesses. I believe God has ordained the law as a gift to us. The challenge to represent clients vigorously but with civility and ethics has always appealed to me. Having the opportunity now to be on the bench is the realization of a lifelong dream. I am still excited every day when I go to the office.
Where did you go to law school and what did you do before serving on the bench?
I attended Duke University on an Air Force ROTC scholarship; so, I had the honor to serve in the United States Air Force for four years at the Pentagon. I met my wife in church while in the Air Force. After my tour of duty, I attended Harvard Law School and was blessed to be able to come home to Alabama to practice. I spent almost 32 years at the law firm of Balch & Bingham.
Could you share some highlights from your legal career before becoming a judge? What type of law did you practice?
Initially my practice covered all types of lawsuits and included cases all over Alabama. I tried jury trials and bench trials, including insurance and workers compensation disputes among other things. Over the years, my practice grew towards complex commercial litigation, including very large actions involving banking, energy, and class actions. These cases were all over the country (many in federal court) and I appeared in courts in more than 10 states and took depositions in Canada and Germany.
Could you walk us through your approach to analyzing a complex legal case?
My job is to know the details. This means I (or my staff) need to read everything. One of the important assets of my job is that I have the time to do reading and research with few interruptions. The facts can often dictate the result. At the end of the detailed analysis, it is time to take a step back and see whether the result makes sense and whether it fits with the original meaning of the law and whether it is a predictable result. I promised the voters that I would be “boring and predictable,” and I try very hard to render results that do not surprise anyone.
In medicine, physicians go through residency training after medical school and often cite mentors that impacted and made him or her the doctor they are today. Have there been individuals who’ve had a significant impact on your legal career or your life in general?
Yes. There were lots of lawyers at Balch & Bingham who were mentors and influenced me. One of them was Mike Edwards. Mike was the chair of our litigation section when I joined the firm and had a prior military career like I did. Mike was also a member of the American College of Trial Lawyers. He taught me almost everything I knew as a litigator, and he always emphasized truthfulness and a complete devotion to the client. Another mentor is Justice Champ Lyons. Justice Lyons was the chief drafter in 1973 of our Rules of Civil Procedure, which govern the courts day-to-day process. Afterwards, he wrote a treatise explaining the rules and was then appointed (and later elected) to the Supreme Court. I assumed the authorship of his two-volume treatise and wrote the Fifth Edition. He is a hero to me and has been an invaluable sounding board and example for me.
What is the most rewarding aspect of serving on the Alabama Supreme Court for you personally?
The opportunity to provide justice to the citizens of Alabama is a great privilege. I want every party who comes before our Court to feel that we have heard and considered everything they had to say. I want our citizens to feel that, even if they lose, we are trying our best to get the answer correct. I love the opportunity to have oral arguments and have the lawyers explain their arguments. Then, the lawyers and their clients know we heard them, and I hope they can tell from our questions that we are very interested in their cases.
What is the one thing you would like to say to physicians in Alabama?
Trust our system. Even if you may not agree with every decision (and I don’t), I believe that all of the Justices on our Court are trying to get the answer right. If you believe our Court has gotten the answer wrong, I encourage you to go to the Legislature with your arguments to change the law. I can promise all your physicians that we are grateful for the important services they provide, and we value their efforts to contribute to our health. We know that they care deeply about every patient. Thank you for what you do.
The Medical Association of the State of Alabama awarded two $4,000 scholarships to minority medical students Desalyn Johnson and Elijah Morris to help pay the cost of medical school.
The Underwood Minority Scholarship Award is named in honor of Dr. Jefferson Underwood, III, a Montgomery physician who was the first African-American man to serve as the Association’s president. African-American students who are already attending medical and osteopathic school or who have been accepted to school are eligible to apply for the scholarship.
Johnson graduated summa cum laude from UAH with a Bachelor’s degree in Biological Sciences and a minor in Spanish Language. She received an NIH-funded National Research Service Award to investigate the effect of insurance status on infant mortality and morbidity rates in the United States. In addition, Johnson has served as a Medical Student Peer Tutor, Diversity Ambassador, and Louis Stokes Alliance for Minority Participation Mentor. She was raised in a military family and calls Huntsville home.
Morris graduated from Stonehill College in Massachusetts with a Bachelor’s degree in biology and now attends Edward Via College of Osteopathic Medicine at Auburn University. In 2023, he was awarded the John Peter Smith Diversity in Medicine Visiting Student Scholarship and was also recognized as a Hispanic Scholarship Fund Scholar. A New York native, Morris is a member of the Gold Humanism Honor Society and the Auburn chapter of Sigma Sigma Phi.
“Alabama doctors are honored to present these scholarships to Desalyn and Elijah,” said Dr. George Koulianos, a Mobile physician who serves as President of the Medical Association. “These students have demonstrated remarkable dedication and promise in their pursuit of a career in medicine. The Underwood Minority Scholarship Award aims not only to alleviate the financial burden of medical education but also to empower individuals to become outstanding leaders in medicine.”
This Fall, the Medical Association’s Governmental Relations team kicked off its Regional Receptions Tour across the state to bring lawmakers and physicians together to help discuss issues affecting medicine in Alabama. Partnering with 9 medical specialty societies to put on these events, the Association is working to host 11 receptions reaching from Mobile to the Shoals area of Alabama and many places in between.
At each of these receptions, the Association and other partnering specialties present information to lawmakers to educate them on a variety of topics of interest to physicians and patients. Local physician involvement is vital to the Medical Association’s success for its members and the patients under their care. These receptions serve as an excellent opportunity for physicians and local lawmakers to interact and discuss the challenges medicine faces in maintaining access to quality care for patients.
These 11 receptions offer a first-rate occasion for a supportive, multi-specialty effort to proactively educate lawmakers on issues of interest to medicine and foster strong working relationships between local physicians and their elected officials. While the Association and its Government Relations team serve as the “boots on the ground” when working with legislators on health care policy in Alabama, there is no more impactful outreach to legislators on health care issues than that of a local physician constituent.
The Medical Association appreciates its specialty society partners and the physicians participating in these events. The Association looks forward to updating its physician members at the conclusion of the 11-reception tour.
Thank you to the specialty societies partnering with the Association on these events:
Alabama State Society of Anesthesiologists
Alabama Academy of Family Physicians
Alabama Section – American College of Obstetricians and Gynecologists
Alabama Academy of Eye Physicians and Eye Surgeons
Alabama Orthopaedic Society
Alabama Psychiatric Physicians Association
Alabama Academy of Radiology
Alabama Chapter – American College of Emergency Physicians
Justice William B. Sellers was appointed by Governor Kay Ivey in May 2017 to fill a vacancy on the Supreme Court of Alabama.
Justice Sellers received a Bachelor of Arts degree from Hillsdale College in 1985, a Juris Doctorate from the University of Alabama in 1988, and a Masters of Laws in Taxation from New York University in 1989. Justice Sellers practiced law in Montgomery for 28 years. He maintained a general business practice with emphasis on taxation, business organizations and finance. A major part of Justice Sellers’s practice involved tax litigation.
Justice Sellers and his wife, Lee, have been married for 35 years. They are members of Trinity Presbyterian Church and have three adult children.
Can you tell us a bit about your early life and upbringing? Where were you born and raised?
I was born in Montgomery and still live in the same neighborhood; Thirty-five years ago, I married the girl down the street. My father was an investment banker and, before she had 4 children, my mother was a history professor. My parents were a devoted couple, very active in the civic life of our community and provided our family with a wonderful nurturing environment.
What motivated you to pursue a career in law and ultimately run for office?
I was the last of 4 children and when my sister left to go off to college, I was virtually an only child, so I spent a lot of time with my parents and I saw in particular from my father’s standpoint how complicated the law was and how difficult it was for businesses to prosper in that environment. I observed how his lawyers solved regulatory and other legal problems and I thought a career in law would be challenging for me.
In 2017 after Gov. Ivey became governor there was an opening on the court and she appointed me. I was elected in 2018 without any opposition.
Where did you go to law school and what did you do before serving on the bench?
I received by undergraduate degree from Hillsdale College with the BA in History and Political Economy. I received a JD from the University of Alabama and then I went to NYU where I received an LL.M in taxation.
Could you share some highlights from your legal career before becoming a judge? What type of law did you practice?
For 28 years I practiced tax law in Montgomery. While I primarily had an office practice, I also handled tax controversies and successfully litigated cases against the Alabama Department of Revenue and Internal Revenue Service.
Could you walk us through your approach to analyzing a complex legal case?
When cases are assigned to me, I review the order or motion that is being appealed so I can understand what the real issues are that the parties are disputing. I then review the briefs to make sure I understand the material facts and then I look at the law to understand the basis for the lower court’s decision. Based on my review of the law, I decide whether we should affirm the trial court’s decision or reverse it. Then, I write an opinion explaining my reasoning for the action I think the court should take with the appeal.
In medicine, physicians go through residency training after medical school and often cite mentors that impacted and made him or her the doctor they are today. Have there been individuals who’ve had a significant impact on your legal career or your life in general?
Absolutely! I had great professors in college. Dr. Jim Juroe taught me how to write with precision, Dr. John Willson made me love the founding of America, Dr. Rodler Morris engaged my thinking about the history of science and Dr. Tom Burke challenged me to think critically about the Protestant Reformation. In law school, Don Turlington gave me an appreciation of the complexities of partnership taxation and Richard Pomp opened the world of state and local taxation to me.
What is the most rewarding aspect of serving on the Alabama Supreme Court for you personally?
By the time cases get to us, they are usually complicated and have the potential to be very significant. To decide these important cases and know that our decisions have a wide impact is personally fulfilling.
What is the one thing you would like to say to physicians in Alabama?
Thank you for what you do. I hope you will view Alabama’s judicial system favorably and find that our system provides consistency and certainty so that professionals can conduct business in Alabama knowing that the court system provides a fair and stable environment to efficiently resolve disputes.
Justice James L. “Jay” Mitchell was elected to the Alabama Supreme Court in 2018.
Before serving on the Supreme Court, Justice Mitchell was an accomplished litigation attorney with Maynard, Cooper & Gale (now Maynard Nexsen). During his time in private practice, he tried a number of complex cases to verdict, successfully handled appeals, and obtained favorable settlements for clients. He was rated as one of the top litigators in the United States and Alabama, and received the highest possible rating for professional ethics. He also served on Maynard, Cooper & Gale’s executive committee, helping to lead strategic and growth initiatives for the firm.
Can you tell us a bit about your early life and upbringing? Where were you born and raised?
I was born in Mobile and did my early growing up in the Wiregrass, where my parents are from. My father was a salesman and my mother was a teacher and stay-at-home mom.
When I was 10, my dad took a new sales job that moved us to Homewood. Like my two younger siblings, I went to middle school and high school in Homewood. We attended Covenant Presbyterian Church (PCA), where my dad played the piano each Sunday.
I’m thankful that I was raised in a home with strong values and a lot of love and encouragement (though my brother and I did get into our fair share of scrapes as kids!).
What motivated you to pursue a career in law and ultimately run for office?
I had no lawyers on either side of my family and did not know much about law beyond what I read in John Grisham novels and saw in “A Few Good Men” back in the 90s.
But in the January term of my sophomore year at Birmingham-Southern, I interned at the law firm of Maynard, Cooper & Gale in Birmingham. I would go to their offices in the morning, then head back to campus in the afternoon for basketball practice. I thought what the lawyers at Maynard did seemed interesting – but more importantly, I just really liked the people there and was impressed with how much the lawyers seemed to enjoy working with each other and their clients.
The firm was kind enough to let me keep coming back to work in the summer and on holiday breaks when I was in college. I would summarize depositions, do basic research, and run documents to the courthouse. Eventually, I decided to go to law school – and they hired me to work there as a summer associate both of my summers. It wasn’t difficult for me to decide to go practice law there after law school!
Where did you go to law school and what did you do before serving on the bench?
I graduated from the University of Virginia School of Law, where I met my wife Elizabeth, a proud Auburn graduate. We got married before our third year of law school and both graduated in 2002.
Not long after passing the bar, I began practicing law at Maynard in Birmingham. I practiced there for 16 years and became a shareholder. I also served on the management committee of the firm during a time of rapid growth.
I thoroughly enjoyed my time as a lawyer – working with clients and being in the trenches with my law partners and colleagues gave me great professional satisfaction.
Could you share some highlights from your legal career before becoming a judge? What type of law did you practice?
I handled all kinds of cases. My specialty was commercial litigation, where a business would be sued for money damages based on a contract or some other type of claim. But I also handled construction, environmental, securities, real estate, products liability, and other types of cases – which prepared me well for serving on the Supreme Court, because we decide a wide variety of cases and are constantly having to toggle between different areas of the law.
Probably my most vivid memory as a lawyer was serving as lead counsel for a national radio company during the “sports talk radio wars” in Birmingham. As radio listeners may recall, other suitors did their best to get Paul Finebaum to leave WJOX while he was under contract and take his renowned call-in show elsewhere. We engaged quickly on behalf of the company, got embroiled in some fast-moving litigation, and ultimately kept Finebaum and his right-hand people at home. Of course, once Finebaum’s contract expired, he moved on to help launch the SEC Network, where his brand has become bigger than ever. Some great stories from those days!
Could you walk us through your approach to analyzing a complex legal case?
I believe it’s our job on the Supreme Court to get the law right in the cases that come before us. When it comes to analyzing a complex case, that means digging in on the law, understanding the procedural nuances of the case, reviewing and digesting the factual record, and announcing our Court’s ruling in a way that is clear to the parties and the public. That takes time, energy, and occasionally some robust discussion with my colleagues. But I believe it’s absolutely critical that we commit ourselves to finding the correct answers under the law and expressing those answers well.
In medicine, physicians go through residency training after medical school and often cite mentors that impacted and made him or her the doctor they are today. Have there been individuals who’ve had a significant impact on your legal career or your life in general?
Absolutely. The lawyers at Maynard who trained me in how to practice law – Tony Miller, George Lynn, and Jim Priester – had a big impact on me and shaped how I approach thorny legal questions. As did Boots Gale, who has a remarkable ability to size up tough situations and provide wise counsel. And Kirby Sevier and Drayton Nabers are longtime personal mentors of mine who taught me how to be a professional in a way that honors God and people.
As far as being a judge, Justices Antonin Scalia and Clarence Thomas have had a huge influence on me. Both of them exemplify what it means to uphold the Constitution and the rule of law, while holding the line against judges who try to subvert the law by interjecting their own policy preferences into rulings.
What is the most rewarding aspect of serving on the Alabama Supreme Court for you personally?
Working with my law clerks. These are sharp, young attorneys – many of whom are fresh out of law school – who come and work with me for a year before launching their legal careers. They include the best and brightest students from Alabama and Cumberland, as well as graduates of Harvard, Chicago, Virginia, NYU, and other great law schools across the country. My law clerks keep me in teaching mode and sharpen me as a judge.
I’m pleased to say that Justice Clarence Thomas has hired three of my clerks to work for him at the United States Supreme Court – which is a huge honor for them and I believe is a testament to the quality of work that we’re doing together at the Alabama Supreme Court.
What is the one thing you would like to say to physicians in Alabama?
The courts really matter and have a big impact on your profession – how you practice medicine; the legal exposure that you face as you do your job and manage your office; and how much you pay in insurance premiums.
I would encourage you to get engaged and support judges and judicial candidates who are committed to doing two things. First, when it comes to legal texts – whether a public text like a constitutional provision or a statute or a private document like a contract – a judge should be committed to interpreting and applying the words on the page faithfully as they’re written. This promotes fair notice to those who are impacted by the law and should minimize surprises for the public.
Second, a judge should have the right outlook when it comes to common-law issues. A number of areas of law fall into the category of “Alabama common law” – which means they aren’t written down in a constitution or a code book, but are developed entirely by the courts. This includes key areas for doctors like torts and property; it also includes the Alabama Supreme Court’s process for reviewing punitive damages. When it comes to common-law issues, you want judges who will be appropriately attuned to how their rulings may impact industry and the overall legal landscape.
