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switched

to

a

"preferred"

medication.

Once

a

PAL

was

in

place.

Omnicare

pharmacists

instrncted the nursing home personnel to switch the order to the "prefeITed" medication - even

retroactively.

79.

Pursuant to the PAL, if a physician prescribed a medication that appeared on the

PAL substitution list (Omnicare's list of non-preferred dmgs that fell within the class of its

kickback-sponsored preferred dmgs), a special printer at Omnicare produced a letter explaining

to the facility that the physician had authorized Omnicare to switch the prescribed medicine. An

Omnicare pharmacist would then fax the letter to the nursing home so the nurse could change the

order.

SO.

Omnicare's PAL computer system had a mechanism for tracking and producing

receivables to demonstrate the effectiveness of the PAL letters and for the purpose of generating

a report akin to an invoice detailing successful switches. Omnicare could then use these reports

to invoice Bristol Myers for its kickbacks. The PAL computer system also tracked physicians

who refused to execute PALs.

SI.

Lisitza witnessed the switching of ACE inhibitors to Monopril even in patients

whose physicians had not executed PALs, had refused to execute PALs, or who specifically

instmcted that their patient was to receive an ACE inhibitor other than Monopril.

S2.

Bristol Myers knew, intended, or reasonably should have known and foreseen that

the Monopril Market Share Agreement would cause Omnicare to submit false claims by

engaging in illegal and unauthorized medication substitution, replacing the independent medical

judgment of a patient's physician with that of Omnicare pharmacists, consulting pharmacists,

and other Omnicare employees by changing physicians' orders for specific ACE inhibitors to

Monopril.

22

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