Pharmacist questions opioid lawsuits

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BRATTLEBORO — As the town considers joining two lawsuits to recover financial losses associated with the opioid crisis, at least one local pharmacy owner is wondering what he did wrong.

"I'm filling within the laws that oversee pharmacies," Andrew Miller, owner of Brattleboro Pharmacy, said. One of the two lawsuits could include local pharmacies.

In October, Town Attorney Bob Fisher approached the Select Board about joining other municipalities around the country in suing opioid manufacturers, distributors, pharmacies and pharmacy benefit managers, which decide which drugs will be covered by insurance, for their role in the epidemic. Bennington was the first town in Vermont to file a complaint.

This month, Vermont Attorney General T.J. Donovan suggested towns and cities "seriously consider" joining a national class action suit against drug manufacturers, distributors and large pharmacies.

On Nov. 11, Miller told Select Board members in an email that he thinks residents deserve an answer as to how the pharmacies in town have contributed to the opioid epidemic, and requested specific examples.

"The (Select Board) has stated that a majority of heroin addicts reported using prescription opiates before transitioning to heroin," Miller wrote. "As a pharmacist who dispenses opiates every day for legitimate medical conditions, my experience is most people legally prescribed opiates, using them in the manner they are prescribed, under medical supervision, do not become heroin addicts, and this is an important point to recognize as well, don't you think?"

Miller said only Tim Wessel, vice chairman of the Select Board, responded to his email. Wessel wrote that though he cannot speak for anyone else on the board, he is leaning toward not including locally-owned pharmacies, "because the evidence seems to be weak for those in the current lawsuit."

The Bennington suit included The Pharmacy Inc. in its list of defendants, but only included specific allegations against the larger pharmacies.

At a recent Select Board meeting, the board deferred an agenda item about the lawsuits to tonight. The town attorney was not present to answer questions.

On the question of including local pharmacies in a suit, Wessel told the Reformer he is "still pretty much where I was then, but I have a few confidential things to review before our next meeting."

In a memo related to the Bennington suit, Fisher said, "Pharmacies are obliged not to fill suspicious orders and to report suspicious prescribing practices. Separate and apart from doctors, they are obliged to have suspicious order monitoring programs in place for the drugs at issue."

Fisher said damages will be based on relative impact across towns. Factors include the population suffering from opioid use disorder, the number of opioid deaths and opioid shipments into the community. Fisher has told the board the suit probably did not include doctors as defendants because then it would become about malpractice.

MEDICAL STAFF WEIGH IN

Franz Reichsman, a retired emergency room doctor who lives in Brattleboro, recalled a state agency in New Hampshire regularly sharing information about prescriptions he wrote and pharmacists calling him once in a while. He also remembered getting "sob stories" from patients all the time.

"You know, my Percocet fell in the toilet or something, someone broke into my car, I just filled my prescription and they broke in," he said. "If the person was good, you couldn't really tell if they were telling the truth or not. The fell-in-the-toilet story, we got sick of pretty quickly."

Reichsman said he prescribed one man 16 painkillers and the man changed the number one into a four in hopes of getting 46 pills.

"So I said, 'You can just tear that prescription up and throw it away,'" he said of his conversation with the pharmacy. "You could have called the cops at that point but I just wasn't tuned into it. I didn't think of it."

Reichsman said doctors did not want to irritate the Drug Enforcement Administration or state Board of Medicine for fear of getting their licenses taken away.

"There's a lot of oversight, I think, and you don't want to be in their sights because it will make things difficult," he said.

The state of Vermont has its own rule for governing the prescribing of opioids for pain. Providers are expected to consider non-opioid and non-pharmacological treatments before writing a prescription for Schedule 2, 3 and 4 drugs. Schedule 2 includes opioids.

Miller told the Reformer that drugs get scheduled by the DEA based on eight factors, including the potential for abuse, the physical or physiological dependence liability and scientific evidence of the pharmacological effect.

"It sure is an interesting process sometimes," said Kurt White, senior director of ambulatory services at the Brattleboro Retreat. "I think what they really want to know is: Does it create a dependence, in the sense, if you use more and more of it, does the body adjust to it in a way that could create withdrawal or might the drug create basically a problem where the person might want more and more of it? And that might be related to, but not exactly the same as, physiological dependence."

The state uses "morphine milligram equivalents" (MME) to make recommended dosages based on ages. For instance, adults 18 and older should not be prescribed 32 MME unless justified by medical records.

Providers can refer to the Vermont Prescription Monitoring System. The Vermont Department of Health describes the system as "a clinical tool to promote appropriate prescribing while deterring the misuse, abuse and diversion of controlled substances," and "a surveillance tool that is used to monitor statewide trends in the dispensing of controlled substances."

"I think the prescription monitoring system was a great innovation and I think it's really helped prescribers to help keep patients safe and to feel safer in managing the prescribing of controlled substances," White said.

Miller said the numbers are moving in the right direction.

"The total amount of opioids dispensed has decreased over time," according to the last quarterly report, covering April to June, from the Vermont Department of Health. From the first quarter of 2016 to the second quarter of this year, the state's total MME use has decreased by 44 percent — going from more than 91 million down to about 65.5 million MME.

The report says the percentage of Vermonters receiving at least one opioid prescription has been stable over the past year, and the average daily MME has decreased over the past six months.

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About 4.7 percent of Windham County's population was prescribed opioids during April to June — compared to 5 percent in Bennington, 5.1 percent in Franklin and 5.9 percent in Orleans. Other counties have smaller percentages. About 4.3 percent of the state population was prescribed opioids during that time.

THE LAWSUIT

Bennington's complaint includes allegations of public nuisance, unjust enrichment, fraud, negligence, conspiracy and racketeering. It left Miller wondering if public nuisance was included to make it easier to get a settlement.

James Valente, a lawyer in Brattleboro, said he thinks it is part of a strategy to avoid dismissal and summary judgment "but as a general rule, the stuff you're doing to win a trial is also putting you in the best position for a settlement because they'll only settle for real money if they believe there's a meaningful chance the trial will be worse."

Public nuisance allegations, Valente said, are "usually used in pollution cases, and this is different and more complicated. That's not to say it won't work, though. Only that it's not simple."

Pharmacy benefit managers, which are named in the suit, are referred to as "middlemen" by the National Community Pharmacists Association.

"Employers have seen a 1,553 percent increase in per-employee prescription drug benefit costs since 1987," the association said in a document about pharmacy benefit managers, using data from a 2015 report. "In the U.S., prescription drugs now account for nearly 10 percent of all national health care expenditures, up from 5.2 percent in 1987."

Miller said he does not know how he has become enriched by the crisis or how he has been involved in racketeering and conspiracy. He said it is very difficult for independent pharmacies to survive.

"Our margins are going in the wrong direction, and it's not good," he said before showing the profit for one prescription for opioids in his pharmacy: a little more than $2 without counting labor and other costs.

Miller said he wants to know what he is doing wrong so he can take corrective action to improve his practices. He believes doctors are trying to help and that it would be a problem if he were always thinking customers with prescriptions were misusing the drugs.

About eight years ago, he recalled, people started coming from Florida with prescriptions for painkillers.

"Those were pill mills," he said. "They were coming up to Vermont trying to fill these prescriptions."

Miller said the DEA or Vermont State Police would be called if pharmacies could not verify that the person was a legitimate patient.

"Everyone in town saw that," he said. "And when they talk about things like enriching ourselves, it's infuriating to me. Nobody goes into health care to enrich themselves. We're here to help people, not enrich ourselves."

Miller said he has a lot of training and education, and hopes to be looked at as a resource by the medical community.

The prescription monitoring system shows what drugs have been prescribed to a person and which pharmacies and physicians were involved. When new patients are run through the system, Miller said, "sometimes interesting stuff comes up, but usually not."

"I think I can speak for the community," he said, "We're not filling bogus prescriptions. Not that it's never happened, but it's rare."

Miller said his pharmacy is inspected by the Vermont Secretary of State's Office, and data on opioid prescriptions and policy information are collected by his insurance company. If a pill count in a prescription seems unusually large, he said, he can call the doctor and ask why.

A report for his pharmacy from October 2018 to October 2019 shows opioid prescriptions made up 3.6 percent of all prescriptions filled, but it is unknown how many represent unique patients.

Miller said he has confidence his insurance company would raise a red flag if things seemed wrong, and all pharmacies have to maintain inventory records to satisfy federal and state authorities.

In 2010, Miller said he reported a man to police for calling in fraudulent prescriptions. He expressed frustration that the man was not taken into custody, because the individual soon landed in trouble for kidnapping and armed robberies.

"My only question back to the board is: What is the judicial system's responsibility when we do report something?" Miller said. "And I don't know the answer to this."

Miller pointed to a factor he believes largely contributed to the crisis: "The Fifth Vital Sign," the name given to assessing patients' pain after The Joint Commission, formerly known as the Joint Commission on Accreditation of Healthcare Organizations, introduced standards for organizations to improve their care in 2001.

"After initial accolades and small studies showing the benefits of following the standards, reports began to emerge about adverse events from overly aggressive treatment, particularly depression after receiving opioids," Dr. David W. Baker wrote in a report published by the commission in May 2017. "There were also signs that some clinicians had become overzealous in treating pain."

In early 2016, the commission began a project to revise pain assessment and management standards. Baker said its purposes included identifying high-risk patients and having equipment available to monitor them.

Miller worries the pendulum is swinging in a direction where doctors are not treating pain out of fear of getting into trouble. He also believes there is a responsibility to help people rehabilitate from addiction and dependence.

"I think we should do it in a way that is nonjudgmental or punitive," he said.

Reach staff writer Chris Mays at cmays@reformer.com, at @CMaysBR on Twitter and 802-254-2311, ext. 273.


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