Castigating the tactic as a “publicity stunt,” Attorney General Ashley Moody is asking a judge to reject an effort by the nation’s two largest pharmacy chains to add 500 unidentified physicians to the state’s lawsuit against the pharmaceutical industry over the opioid epidemic.
CVS Pharmacy Inc. and Walgreen Co. filed what is called a third-party complaint against 500 “John and Jane Doe” doctors, alleging that the prescribing physicians — and not the drug stores — are to blame for faulty prescriptions.
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 pharmacies argued in the third-party complaint filed Jan. 22.
“But pharmacists do not write prescriptions and do not decide for doctors which medications are appropriate to treat their patients,” the chains’ lawyers wrote. “While pharmacists are highly trained and licensed professionals, they did not attend medical school and are not trained as physicians. They do not examine or diagnose patients. They do not write prescriptions.”
Pharmacists, “with limited exceptions,” are “bound to respect a prescribing doctor’s professional medical judgment about which medications are appropriate to treat a particular patient under the doctor’s care,” the companies argued.
The pharmacy chains deny they are “liable in any respect.”
But responding Wednesday to the third-party complaint, lawyers representing the state accused CVS and Walgreens of having “launched a publicity stunt attempting to deflect attention from their role in causing the opioid epidemic plaguing Florida.”
“CVS and Walgreens’ gambit is factually unsupported because both pharmacies have records concerning the prescriptions that the pharmacies dispensed, including the names of the doctors who wrote the prescriptions,” the state’s lawyers wrote.
The Attorney General’s office filed the lawsuit in 2018 to try to recoup millions of dollars the state has spent because of the opioid epidemic. The lawsuit was filed against manufacturers, distributors and sellers of opioids and included a series of allegations, including misrepresentation about opioid use and filling suspicious orders for drugs. The state later added CVS and Walgreens to the lengthy list of defendants in the case.
In the third-party complaint, CVS and Walgreens lawyers wrote that if the chains can be held liable for filling prescriptions, “ultimate responsibility must rest with those who wrote the prescriptions: the prescriber defendants themselves.”
The chains will amend their complaint to identify the doctors “if plaintiff (the state) ever identifies the specific prescriptions it claims should not have been filled,” they wrote.
The state’s attorneys, however, wrote that the pharmacies have records of prescriptions, including the names of the doctors who wrote the prescriptions, but they failed to identify “a single prescriber.”
The pharmacies’ “tactic” is legally groundless “because Florida law treats such John and Jane Doe filings as a nullity,” the state’s lawyers wrote, adding “such a filing does not commence a legal action against any party.”
Retail pharmacies “are the last line of defense between dangerous opioids and the public,” the state argued, accusing Walgreens and CVS of failing to fulfill their obligations to adequately review prescriptions and ensure they were “effective, valid, and issued by a practitioner for a legitimate medical purpose” as required by law.
Both pharmacy chains were the target of enforcement actions related to the opioid epidemic, the state argued.
CVS “paid millions of dollars to resolve allegations of malfeasance” at one of its stores in Sanford, and Walgreens “paid millions of dollars in connection with diversion and record-keeping problems” at its Jupiter distribution center and six retail stores, Moody’s lawyers pointed out.
A Walgreens in Pasco County “sold 2.2 million tablets in Hudson alone in one year,” the state added. The lawsuit is filed in the 6th judicial district, which encompasses Pasco and Pinellas counties.
The state asked the judge to strike or sever the third-party complaint, saying the John and Jane Doe pleadings were not proper and that any attempt to litigate the third-party claims along with the state’s complaint “would be unduly cumbersome for the parties and the court.”
In the third-party complaint, the pharmacy chains said the state has not sued health-care practitioners who wrote the opioid prescriptions. Over 60% of the opioids dispensed in Florida did not come from the chains, they argued.
“But in a misguided hunt for deep pockets without regard to actual fault or legal liability, plaintiff has elected not to sue any of these other parties,” the pharmacies’ lawyers wrote.
The pharmacies also denied the state’s allegations that a vast number of Florida doctors wrote an excessive volume of opioid prescriptions without legitimate medical purposes.
“Perhaps unsurprisingly, the state’s lengthy amended complaint against the Florida pharmacy chains fails to identify even one prescription that was supposedly filled improperly by any pharmacist for any of the Florida pharmacy chains. Not one,” the chains said.
Pharmacists who work for the drug store chains “are among the best, most caring, and most conscientious in the business,” their lawyers argued.
“They care just as deeply about their communities as anyone else and could not take more seriously the responsibility of dispensing of controlled substances, including prescription opioid medications. At the same time, they are committed to serving the legitimate needs of patients across the community who must have access to such medications, as prescribed by their doctors for conditions that can range from pain in terminal cancer patients to severe pain after surgery to disabling chronic conditions,” they added.