Pharmacies want physicians to be held accountable for prescribing addictive opioids.
CVS Pharmacy Inc. and Walgreen Co. filed a third-party complaint in January of this year against 500 “John and Jane Doe” physicians, shifting blame for the opioid epidemic from the drugstores to the doctors. However, Kimberly Sharpe Byrd, a circuit court judge for Pasco County, recently agreed to keep the unidentified physicians out of the state’s lawsuit against the pharmaceutical industry while leaving open the possibility of adding specific doctors’ names at a later date.
The state’s lawsuit against the chains “is nothing more than unsupported speculation that pharmacists filled prescriptions for opioid medications that they should not have filled despite the state’s inability to support its claim with even one instance of an improperly filled prescription,” the pharmacy companies argued.
Florida’s Attorney General, Ashley Moody, said the move was a “publicity stunt” and asked Sharpe Byrd to reject the request. Byrd ultimately agreed but said CVS and Walgreens might be able to “add doctors’ names after the state discloses prescriptions it maintains should not have been filled.”
Marcos Hasbun, who works for Tampa area’s Zuckerman Spaeder law firm representing CVS and Walgreens, said, “When the state decides to finally get around to doing that, CVS and Walgreens will amend the third-party complaint to name all, or perhaps just some, of the doctors who wrote the prescriptions the state claims CVS and Walgreens should not have filled. This case is not just about what the state wants to prove. It’s what the CVS and Walgreens defendants also want to prove in their defense and also shift any liability that might be imposed upon them.”
The AG’s office filed Florida’s lawsuit in 2018 to collect on fees associated with the widespread epidemic. The suit named manufacturers, distributors, and sellers of opioids and claimed these parties misrepresented the risks of opioid use and filled suspicious orders. The state later added CVS and Walgreens to the list of defendants.
In November 2019, Moody issued a public statement on Pasco County Judge Kimberly Sharpe Byrd’s ruling in favor of the AG’s motion to access Florida’s Prescription Drug Monitoring Program Database in the state’s ongoing efforts to hold the nation’s opioid distributors, manufacturers and pharmaceutical companies accountable for the opioid crisis, calling the ruling “another step forward in our fight to hold accountable those who are responsible for the opioid crisis ravaging our state.”
“The state’s position is that there is no role for the doctors in this case,” Ariela Migdal, an attorney with Kellogg Hansen Todd Figel & Frederick said.
But the drugstore attorneys maintain they were “forced to file the complaint against unnamed prescribers because the state has yet to disclose a single flawed prescription more than 18 months after the lawsuit was filed.”
“If they should not have been filled, then it logically means that a doctor should not have written them,” said Hasbun. “The state cannot seriously argue that it can sue the pharmacies but not prescribers over faulty prescriptions. Without the doctor writing the prescription, there is no prescription for pharmacists to fill.”
Migdal contended, “The focus of the state’s action is on whether the pharmacies violated their own duties of care and not on whether doctors were wrong to order the drugs.” She continued, “Even if a prescriber writes a prescription that is faulty in some way, a pharmacist still has an independent duty under Florida law to do their due diligence and investigate the red flag and if necessary decline to fill that prescription…Adding hundreds of unidentified doctors to the case introduces new elements that are not already part of the lawsuit. Litigating these new issues and causes of action would take time and really would divert resources from the state’s case against the pharmacies.”