Who, if anyone, should be held legally responsible for the opioid crisis?
For years, politicians looking for good publicity and an easy source of funding have used novel legal theories to go after the makers of FDA-approved prescription opioids. But the pharmaceutical companies are not the only deep-pockets in the government’s crosshairs.
Recently, the Trump administration has threatened to sue Walmart, which operates more than 5,000 in-store pharmacies, for filling legal opioid prescriptions written by doctors licensed in their states. Last spring, two Ohio counties filed suit against Walmart, as well as CVS, Rite Aid, Walgreens, and Giant Eagle for allegedly failing to review suspicious prescriptions in northern Ohio.
Pharmacies, of course, neither make opioids nor sell them on their own initiative. They merely dispense them pursuant to legal prescriptions. Many have implemented strict policies in an attempt to curb the abuse of such prescriptions. In 2017, for example, Walmart launched an “opioid stewardship initiative”, which limits customers to a week’s supply of dangerous, addictive medications — even if their doctors have prescribed them more. In addition, Walmart developed and uses a computer algorithm to spot suspicious prescribers and put nationwide holds on their scripts.
Although the government claims Walmart is not doing enough, the company’s efforts have been widely criticized by doctors. According to Real Clear Investigations, the American Medical Association has accused Walmart of “disrupt[ing] legitimate medical practices” and of trying to supersede the rights of doctors to prescribe medicine under state and federal law. The Wall Street Journal reports that several state regulators have raised similar concerns about attempts by pharmacies to curb prescription abuse. And, in August, chronic pain patients filed a class action lawsuit in federal district court in Rhode Island, claiming that CVS pharmacies discriminated against them by refusing to fill their legitimate opioid prescriptions. Individual doctors have also sued, claiming defamation after pharmacists declined to fill prescriptions they wrote.
All of this has placed retail pharmacies like Walmart and CVS between a rock and a hard place. So, in an attempt to seek legal clarity, Walmart this past October filed a declaratory judgment action in U.S. District Court for the Eastern District of Texas. The preemptive lawsuit against the Department of Justice (DOJ) and Drug Enforcement Administration (DEA) asks the court to declare that the government has no lawful basis for seeking monetary damages from the company for filling valid prescriptions.
Explaining the legal dilemma faced by pharmacies, the complaint states that,
a pharmacist who fills a facially valid opioid prescription risks federal investigation, civil liability, or even criminal prosecution should DOJ and DEA claim in hindsight that a prescription the pharmacist believed was valid should not have been filled. On the other hand, a pharmacist who refuses to fill such a prescription risks having her license stripped for the unauthorized practice of medicine, not to mention the potential harm to patients in need of their medicine.
These risks are not hypothetical.
Walmart and its pharmacists face state investigations and lawsuits for interfering in medical practice—that is, for going too far by refusing to fill opioid prescriptions. And DOJ now has stated it will sue Walmart for not going far enough by continuing to fill opioid prescriptions of certain licensed doctors—many of whom are still authorized by DEA to prescribe opioids to this day.
Walmart is right. Stopping the illegal abuse of prescription medication is the job of the Drug Enforcement Agency, which has the legal authority to strip unethical doctors of prescribing privileges, not retail pharmacies or individual pharmacists.
The opioid crisis is a serious public health problem that requires a multi-pronged approach, including legislation, regulation, law enforcement, treatment, and education. But we shouldn’t allow politicians to pin legal blame on private companies just so they can fill government coffers and take credit for “doing something” about opioid abuse.