On Monday, six major drugstore chains—including CVS, Rite Aid, and Walgreens—filed a lawsuit in the ongoing opioid litigation arguing that physicians and other health care practitioners who write opioid prescriptions should be held liable for contributing to the opioid epidemic, not the pharmacists.

Background

The drugstore chains—which also include Discount Drug Mart, Giant Eagle's pharmacy group HBC, and Walmart—are all defendants in a federal lawsuit brought in 2018 by Ohio's Cuyahoga and Summit counties that is set to begin in October, the Cleveland Plain Dealer reports. In the lawsuit, the Ohio counties allege that the drugstore chains helped to fuel the opioid epidemic by filling high volumes of opioid prescriptions.

According to the Plain Dealer, the case will be the first lawsuit in the federal opioid litigation being overseen by U.S. District Judge Dan Polster to go to trial since the counties reached settlement agreements with drug distributors, drugmakers, and other companies. Walgreens was the only defendant in that case that did not settle. Negotiations are ongoing in a separate national consolidated case of more than 2,000 lawsuits, as well as lawsuits filed by states in state courts.

Overwhelmed by the multi-million dollar opioid settlements? Here's everything you need to know.

Details on the new suit

In legal papers filed Monday, the six major drugstore chains argued that if they were found liable for contributing to the opioid epidemic, providers should be too. The drugstore companies in their complaints did not name individual doctors, only referring to them as "John and Jane Does 1-500."

The pharmacists, the companies argued, were simply filling a prescription written by a doctor.

"A prescription for a controlled substance is an order for a medication that may be issued only by a physician or other authorized health care practitioner," lawyers for the companies wrote. "While pharmacists are highly trained and licensed professionals, they did not attend medical school and are not trained as physicians."

Timothy Johnson, an attorney for Discount Drug Mart, said, "We the pharmacies just fill the prescriptions." He continued, "While certainly we have a limited role in making sure it's a legitimate prescription, not stolen or forged or whatever, to the extent we can, we do that. The pharmacist is not supposed to be second-guessing the medical necessity of the doctor's prescription."

In a statement to FierceHealthcare, Walgreens said, "We strongly believe that the overwhelming majority of prescriptions dispensed were properly prescribed by doctors to meet the legitimate needs of their patients." The statement added, "Plaintiffs broadly contend that the prescriptions were not legitimate and should not have been dispensed by our pharmacists."

The drugstore chains in the suit also questioned why the Ohio counties did not bring charges against independent pharmacies, internet pharmacies, pain management clinics, so-called pill mills and others that dispense drugs and contributed to the opioid epidemic.

Reaction

On Wednesday, the lead attorneys representing the counties suing the drug industry said in a statement that while a number of groups bear some responsibility for the opioid epidemic, "the origins of the opioid crisis and the fuel that spread the epidemic can be traced back to the behavior and practices of corporations in the drug supply chain. Without widespread wrongdoing by the opioid industry—including pharmacies—we would not be in the place we are today."

Elizabeth Chamblee Burch, a law professor at the University of Georgia, said the pharmacy companies are arguing "we're not gatekeepers, we're just toll collectors." She added that the suit "seems to both try to pass the buck onto these third-party doctors, and put the onus on the plaintiffs to identify them."

Alexandra Lahav, a professor at the University of Connecticut School of Law said the suit may be a signal by the companies to Polster that if pharmacists will be held liable for dispensing opioids, the companies will want to look at the prescribing practices of all doctors in both counties.

"This is an illustration of how complex and maybe impossible it may be to prove the underlying claim that Cuyahoga County is trying to prove against these drugstores," she said. "Are we going to question every time we dispensed a drug over a 20-year period?" (Bernstein, Washington Post, 1/8; Anderson, Becker's Hospital Review, 1/8; Welsh-Huggins, AP/ABC News, 1/7; Heisig, Cleveland Plain Dealer, 1/7; Heisig, Cleveland Plain Dealer, 11/19/19; Finnegan, FierceHealthcare, 1/8).