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Jury says CVS, Walgreens and Walmart bear responsibility for opioid epidemic
A federal jury in Ohio has found that CVS, Walgreens and Walmart must take responsibility for the opioid epidemic that has plagued Lake and Trumbull counties in the state. The decision could have a far-reaching impact as many similar suits are expected to follow.
Attorneys representing the two counties argued that the retailers failed to take action to stop the flow of opioids in their communities and therefore enabled the crisis to spread. Each country incurred about $1 billion in expenses as they responded to the growing crisis with law enforcement and social service resources.
The retailers argued that other parties, such as the physicians who prescribed the pain meds and pharmaceutical companies, were the ones most responsible for the widespread availability of opioids.
The Wall Street Journal reports that Trumbull County took in shipments of more than 80 million opioid pills from 2006 to 2012. The county’s population is below 200,000. Lake County, which has a population of about 230,000, received 60 million opioid pills during the same period.
Two other retailers — Giant Eagle and Rite Aid — settled with the counties before the case went to court. Details of the settlements have not been revealed.
“Today’s verdict means a lot to Lake County, because it is a substantive step forward to real healing in this epidemic,” Lake County Commissioner John Plecnik told CNN.
“This verdict will also mean greater resources to combat opioid addiction, which are desperately needed,” Mr. Plecnik said. “I can’t say this strongly enough, no one is immune to the impact of addiction and opioid abuse, and this is not just a victory for Lake and Trumbull, it is a victory for all Americans.”
Dates for the damage phase of the case have not yet been determined.
The three retailers plan to file an appeal to the verdict.
“Plaintiffs’ attorneys sued Walmart in search of deep pockets while ignoring the real causes of the opioid crisis — such as pill mill doctors, illegal drugs and regulators asleep at the switch — and they wrongly claimed pharmacists must second-guess doctors in a way the law never intended and many federal and state health regulators say interferes with the doctor-patient relationship,” the retailer said in a statement.
Discussion Questions
DISCUSSION QUESTIONS: Do pharmacy retailers hold responsibility for the prescriptions they fill? What will the verdict in the Lake and Trumbull County cases mean for pharmacy retailers if CVS, Walgreens and Walmart fail in their appeal of this case?
Poll
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Perry Kramer
Managing Partner, Retail Consulting Partners
Neil Saunders
Managing Director, GlobalData
Yes, pharmacies played a role in the opioid crisis and should be held accountable. If there’s one thing retailers monitor, it’s sell-through. When any product is fast moving, it gets noticed. I find it unfathomable that these retailers didn’t see the outrageous volumes of opioids being sold through some of their stores, and no one asked, “what’s going on here?” Especially in the face of the daily headlines about how bad the crisis was and still is. This verdict could change the dynamics of the cases being tried and bring a whole new level of focus on the retailers’ role in all this.
Quite frankly, this is a ridiculous decision. Pharmacies and pharmacists cannot issue opioids without a prescription. If someone has a valid prescription then they have a duty to prescribe the drugs. The main responsibility lies with those who prescribe such potent drugs so freely – and, I am afraid, on this front the U.S. system is extremely bad at unnecessarily pushing pills for all sort of things. As harsh as it may sound, those who take such drugs must also shoulder some of the responsibility.
I’m with you. The pharmacies are already being ridiculous about what they’ll dispense and what they won’t. If presented a valid scrip, they do their job and fill it. Period. There are plenty of other checks and balances in the system. They all failed.
This. I agree 100 percent – these people are just doing their job.
And, in Ohio, if pharmacists refuse to fill valid prescriptions they can be held legally liable for any injury or harm that results. So this ruling now means they are liable for prescribing and liable for not prescribing. That’s simply bad justice.
Neil, are you saying that if Dr. A prescribes an addictive drug, along with Dr. B and Dr. C, to the same individual, the pharmacist should just fill the fill three prescriptions without question and without any responsibility or liability?
The problem I have with your approach, Gene, is that it misallocates responsibility. If a valid prescription is presented then the pharmacist is (or was at the time this case refers to) doing nothing wrong in filling it. What you need to ask yourself is why, at the time this issue arose, did the state of Ohio not have checks to prevent “doctor shopping” to get multiple prescriptions? Why did it not require pharmacy checks on certain substances (it only put that in place after the crisis had emerged)? As Paula said, checks and balances in the system completely failed. And what about the individuals who got the pills to supply to others? Have they been dealt with? Against all this, it is wrong to simply pin blame on pharmacists for a poor and broken system – and the only reason blame is assigned to them is because there is money to be made from massive companies like Walgreens, CVS and Walmart.
Neil, with respect, I couldn’t disagree more. Pharmacists were responsible, as were their employers, as were the physicians who wrote the scripts, as were the distributors, as were the drug manufacturers, as was the State of Ohio regulators, as was the FDA, as was the DEA’s Drug Diversion Control Decision, and as were the patients — assuming they knew they were abusing the drugs.
There is an ethical chain that extends from top to bottom. Pharmacists, as my pharmacist uncle used to preach to me, are the last line of consumer defense. When mistakes are made at any point in the system it is up to the frontline pharmacist to act as the consumers’ final agent. And, in point of fact there were any number of pharmacists who declined to fill those obviously bogus scripts.
In this case there is plenty of blame to go around, but nobody was blameless. They all knew those numbers and claims didn’t add up.
From an ethical standpoint, I think your points are very reasonable. However, the issue I have is that ethics is not law. And you cannot judge people, under law, on ethics that are not codified within law. It is non-objective and it leaves anyone open to be charged with anything, even if they acted in good faith and under the auspices of all regulations and codes. Indeed, that the judgement in this case relies on public nuisance law shows that there is no other serious breach of regulations that pharmacies could be charged with.
Courts in Oklahoma and California have already struck down rulings against drug companies on the grounds of public nuisance as the charges are far too vague and not permissible. The same thing may well happen on appeal here. At the end of the day, it is the ultimate responsibility of government to set a framework of law. Both state and federal lawmakers and regulators did not do a good job in the case of opioids and other drugs. They can’t now complain and seek to cast blame on every other party in a bid to try and get compensation.
Neil, what you are saying is the defense for Walgreens, et. al. is “It’s not my job.”
No, Gene, the defense of Walgreens, CVS and Walmart is that they did not break any laws in filling prescriptions. And that, under the law, is all that matters. You cannot pronounce someone guilty when they have not broken the law. This is exactly why the charges that were made in this case were on public nuisance grounds and not on the grounds of the pharmacies breaking any regulations, statues or codes regarding prescribing. If they had broken any such specific things this would be an open and shut case. As I pointed out in my previous reply, public nuisance is a very flimsy, inappropriate basis for prosecution which is why similar cases have been overturned by courts in other states.
Of course, if you are making an argument that states and federal regulators should put in place rules about prescribing — which some have after the event — then that’s perfectly reasonable and even sensible. But those laws are not, and cannot be, retrospective.
I apologize for my second rant on this subject. For my colleagues that say they are just doing their job — they are schooled and licensed in their profession. They are not mindless machines.
Gene, my uncle was a pharmacist and he often spoke of the ethical obligation he had to NOT fill certain scripts. Let’s take a clear example. Say “Patient A” receives a prescription for “Drug B” for say asthma. Well and good. But suppose “Patient A” is already taking another drug that is contraindicated when combined with “Drug B.” No pharmacist worth his or her license would fill that second script. They would inform the patient of the contraindication, or call the issuing physician, or both. What they wouldn’t do is fill a prescription they knew … or suspected … would kill or seriously damage a customer. There were pharmacists that refused to fill those oxy scripts (see the documentary “The Pharmacist”). So that whole “just following orders” defense is spurious and flies in the face of the history of modern pharmaceutical best practice.
I agree, The most culpable parties are the doctors who issued the prescriptions. That being said those who sought the opioids were likely crafty enough to request them from a number of doctors. The reason for suing the drug chains is that is where the money is.
The plaintiffs attorneys got it half right. Pill mill doctors, illegal drugs and regulators asleep at the switch are at least part of the cause. They left out two important contributors: pharmaceutical companies and pharmacies.
Okay — so we don’t want to blame the pharmacists individually, though I won’t let them completely of the hook. I do have interaction with the pharmacists at my Walgreens. And if the associate has a question about my meds, they go to the pharmacist to get an answer. If there is a change in the dosage, the pharmacist will ask me about it.
The Walgreens’ systems are so good that they text me and call me if it is time for a refill. With as much data as they have on me, I find it hard to believe that I could cheat on my prescriptions. Maybe they would remind me to refill my OXI?
Certainly I could go to CVS with another prescription and now have two outlets for access to drugs. So maybe there is the answer, maybe an individual’s drug data should be shared and accessible to all pharmacies.
Trumbull County took in shipments of more than 80 million opioid pills from 2006 to 2012. The county’s population is below 200,000. Lake County, which has a population of about 230,000, received 60 million opioid pills during the same period. I can not comprehend that those retailers that received those shipments were not aware that this was going on.
This is a tough pill for retailers to swallow. If they had not filled many of these transactions and started challenging doctors retailers probably would have been sued as well. These large retailers generally have a good relationship with law enforcement. However the retailers are also limited insofar as what they can share with law enforcement is limited by HIPAA regulations. Their only recourse in the future is to find ways to work with law enforcement more proactively.
I agree with the defendant’s claims that pharmacists should not be second-guessing doctors – at the individual level. However this case study certainly and tragically has shown that there should be some type of “whistleblower” or “red flag” infrastructure that pharmacists can utilize to track out of the ordinary prescription volume. And honestly, it probably also should be automated and reviewed by a board – not on the shoulders of the pharmacists themselves.
In my experience local pharmacists take all mandated processes seriously when dispensing meds. I am less convinced that those upstream were watching and alerting authorities of ridiculous volumes going though the supply chain.
This is tricky. Are the employees at the pharmacy responsible for second guessing the doctors who diagnose and then prescribe the drugs? I’m not a lawyer, so I can’t speak to the law, but from a common sense standpoint, aren’t we supposed to trust the doctors who prescribe the drugs? Now if prescriptions look like they are being abused, there may be some protocol for pharmacies to implement that helps curb or eliminate the abuse.
The abusive doctors and drug companies should be dealt with in harshest possible manner. But the retailers can still have a role in detection of wildly out of sync distribution patterns. It’s the simplest of retail data. Unit by unit sales patterns. Knowing what we know about opioid abuse, a retailer detects what has to be wildly abnormal sales patterns and has no responsibility, or at least opportunity, to say something to somebody? Doesn’t sound like good corporate citizenship to me. Just doing my job doesn’t cut it.
When I was a store manager in office supply back in the early-’90s, my staff noticed that we kept running out of smaller Kraft envelopes and portable postal scales. The numbers weren’t huge and they were low-cost, but the pattern of increasing sales was weird. Well, duh, drugs. We took those off our reorder lists and raised the flag to all the other stores in the fleet. And that was without fancy inventory analysis tools – darned right Walgreens, CVS, and Walmart should have seen this at a corporate level and done something about it.
I see both sides. However I can’t believe that the largest chains don’t have access to government agencies and law enforcement to alert them to suspicious patterns.
The system should be set up so the responsibility for prescriptions falls on the shoulder of individual doctors who prescribe the medications. There should be security measures, rules, and consequences that prevent doctors from abusing the system. From a retailer vantage point the consequences are simple- they will stop selling opioids or make the process cumbersome- this will mean a lot of pain for many of those who legitimately need the drugs.
This ruling is ridiculous. My father is dead because the physician caring for him while hospitalized for dehydration prescribed a drug that held a black box warning from the FDA that should never have been given to him. The pharmacy that filled the prescription is not responsible, the doctor who should have known better is. In the case of opioids the drug companies have culpability as well. Not the pharmacies that are simply doing what they are supposed to do: fill prescriptions.
Do you mean it is OK for the pharmacist to fill a prescription for Oxy today from Dr. A, even though the customer got one from Dr. B yesterday and Dr. C the day before? Are we saying even though these prescriptions suggest you are an addict, it is not my position to make a judgment?
As with almost any issue having to do with corporate responsibility, there are some complexities: the companies can claim, perhaps correctly, that they “followed the law,” but they also lobby and heavily influence what the law(s) is(are). Medical issues are particularly problematic because of the privacy issues involved.
The system, beginning at the recovery room, is broken. As the advocate for my father, I witnessed the “no pain is good” approach to recovery for everything from outpatient procedures to bypass surgery. Dad’s recovery and ICU nurses were constantly offering him opioids for any post-op pain – much of which he refused because he was experienced. And, upon release from the hospital, he was always issued an opioid prescription to make sure he wouldn’t have any pain at home. He never had these prescriptions filled, but there are countless patients who would follow doctor’s orders because the doctor must know what he/she is doing, right? And, before you know it, they are dependent.
I firmly believe that the opioid epidemic is the product of years of ignorance on the part of higher authorities and those with the authority to make changes and impact the common man. I’m sure authorities were aware of the potential side effects of these drugs, but they were nonetheless available.
Many of these products are harmful to our health and the environment. However, we are either oblivious to them or continue to use them knowing it all. Because of rising consumerism, we’ve all become ignorant of the indirect costs of the products we buy.
We are constantly bombarded with reckless marketing for cigarettes, alcohol, marijuana, and tobacco products. People, who sell or manufacture them share a part of the blame but do regulators not have enough power to stop them?
Instead of blaming, we as a society must raise widespread awareness of the consequences of our buying patterns. Authorities and individuals alike must be encouraged to follow the principles of conscious consumerism.
Otherwise, our society will cease to provide a pleasant, healthy, and sustainable lifestyle for future generations.