Last week, a federal jury in Ohio found that several major pharmacy chains operating in two of the state’s counties contributed to opioid overdose deaths there. It was the first verdict to be handed down by a jury in an opioids case—and the first to implicate the pharmacy retailers in the broader public health crisis.
Walgreens, CVS Health, and Walmart were found to have contributed to a “public nuisance” by over-selling the benefits of the opioid drugs and downplaying their negative effects, according to the New York Times.
The verdict comes amid a record rise in opioid overdose deaths in the U.S. driven largely by fentanyl, an extremely potent opioid that’s often mixed with illicit drugs, and the COVID-19 pandemic. Though the companies plan to appeal the verdict, it highlights the important role pharmacies play in identifying and stopping abuse before it starts, while ensuring patients can get the medication they need, says Todd Brown, vice chair of the Department of Pharmacy and Health Systems at Northeastern.
Pharmacies are “the major gatekeeper, and they have corresponding liability,” Brown says.
Over the last several years, states have implemented strong safeguards to help curb abuse, including prescription monitoring programs and other databases that let pharmacists track patients’ prescription histories, Brown says.
Doctors and pharmacies have a shared responsibility, he says, to mitigate opioid abuse. But pharmacists can, in some instances, learn more about a patient’s prescription history at the counter than doctors can. Prescribers can see only controlled substances the patient has filled, but pharmacists can access any other medications filled at the pharmacy.
“It’s not appropriate just to say that [pharmacists] are only fulfilling doctors’ orders,” Brown says. “That being said, they don’t write the prescriptions, so some of that falls upon the doctors too.”
The federal suit against the pharmacy giants, brought by the governments of Lake and Trumbull counties in Ohio, is the first to successfully put forward the public nuisance argument. Judges in California and Oklahoma rejected the argument in two state cases earlier this month that attempted to link several drug manufacturers to the broader public health crisis.
The Oklahoma case made it to the state’s highest court after a lower court judge ruled that Johnson & Johnson, an opioid manufacturer, contributed to a public nuisance in its aggressive marketing strategy that downplayed the dangers of the painkiller medication. The Oklahoma Supreme Court ultimately threw out the $465 million judgement.
The public nuisance argument is usually employed in cases relating to public health, public safety, or public peace, like those involving climate change, pollution, or some other harm to communities.
“It certainly is an unusual application of the public nuisance argument,” says Richard Daynard, university distinguished professor of law and president of the Public Health Advocacy Institute at Northeastern. “The question of what legal rules should be applied to a case like this is unclear.”
There have been thousands of opioid suits filed in states across the country in recent months, which has prompted federal court officials to consolidate many of them into so-called multidistrict litigation. The process helps speed up the judicial pipeline by combining cases that have similar issues and one or more questions of fact, Daynard says.
The federal case in Ohio was, in many ways, a test that will give local governments and the pharmacy giants insight into how a jury might rule on these issues, Daynard says.
“This is a little bit of reality testing for the parties here,” Daynard. “We’ll see what happens.”
But for the pharmacy retailers, the Ohio case may not change much, Todd says, adding that pharmacies have already shifted their practices to include more oversight.
“I don’t think this case will necessarily change anything because everything has already changed,” he says.
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