“The moral test of a government is how it treats those who are at the dawn of life, the children; those who are in the twilight of life, the aged; and those who are in the shadow of life, the sick and the needy, and the handicapped.” – Hubert Humphrey
passionate pachyderms
Pharmacist Steve steve@steveariens.com 502.938.2414
A $1.2 billion state-run fund for large medical malpractice awards has seen a significant drop in payments to injured patients in recent years, contributing to a $813 million surplus that is more than twice what regulators recommend, a State Journal analysis shows.
The reduction in the number and amount of payments by the Injured Patients and Families Compensation Fund illustrates how hard it has become to win lawsuits against doctors in Wisconsin, said Mike End, a malpractice attorney in Milwaukee and former president of the Wisconsin Association for Justice.
“I think the medical complex has won the day,” End said. “They’ve beaten the lawyers down to the point that now when people are injured or relatives die because of medical errors, they just can’t find a lawyer.”
But the decline in large malpractice awards could stem from the state’s good medical care, said Mark Grapentine, lobbyist for the Wisconsin Medical Society. Wisconsin rankedthird in health care quality this year by the federal Agency for Healthcare Research and Quality and fourthlast year by the Commonwealth Fund.
“We have high quality of care, so perhaps there are fewer negligence issues happening,” Grapentine said.
The fund, which started in 1975, pays malpractice awards of more than $1 million. Doctors, hospitals and some other health care providers must carry their own malpractice insurance up to $1 million and pay into the fund. At least 13 states have such funds.
Dan Rottier, a malpractice attorney in Madison, said the fund gives doctors and insurance companies less incentive to settle cases because they don’t personally risk losing more than $1 million. A $750,000 cap on non-economic damages in the state also makes it difficult to pursue malpractice cases, which typically cost at least $100,000, he said.
A case before the Wisconsin Court of Appeals, handled by Rottier, could lead to a ruling on the constitutionality of the cap. A jury awarded Ascaris Mayo, of Milwaukee, $16.5 million in non-economic damages after she lost all four limbs from an immune system reaction to an undetected infection. The award was reduced to $750,000 because of the cap.
“The cap punishes the people most seriously injured,” Rottier said. “The structure (of the fund) punishes the smaller cases that never get brought.”
According to a Legislative Audit Bureau reportin March, the fund had a surplus of $783 million a year ago, $406.4 million more than the upper end of a range of $86.4 million to $376.6 million recommended by regulators last year.
The surplus grew to $813 million by March, the Wisconsin Office of the Commissioner of Insurance said last week.
The office has been reducing provider fees to the fund since 2013 to bring the surplus into the target range. Doctors now pay $606 to $3,998 a year, depending on their type of practice, 30 percent less than last year.
Over the past 20 years, the number of payments made by the fund has declined, and the total amounts paid in the past five years are considerably less than the previous five-year intervals, according to a State Journal analysis of data from the insurance commissioner’s office.
From fiscal years 1997 to 2001, the fund made 108 payments, or an average of 22 per year, worth a total of $138.5 million. In fiscal years 2012 to 2016, which ended in June, just 17 payments were made, or an average of three a year, for a total of $61.5 million.
In fiscal 2016, just two payments were made, including $2.75 million to Donna Disch, widow ofTravis Disch, a 37-year-old father of two who died after a routine endoscopy at St. Mary’s Hospital in 2013.
Though the fund and a version of the $750,000 cap have been around for many years, their cumulative effect, along with juries who tend to favor doctors, has led malpractice attorneys to become more selective in accepting cases in recent years, End said.
“There are fewer lawyers willing to take that gamble,” he said. “Patients are left out in the cold.”
However, a report this year by Zippia, a career guidance website, said Wisconsin ranked somewhat higher — 38th — in medical malpractice lawsuits filed per capita last year.
“The lawsuits are happening,” Grapentine said. “It just seems like they’re not winning in Wisconsin.”
Grapentine said that when doctors refuse to settle cases, it’s because they want to protect their reputations, not because of the fund.
“They don’t want to have a stain on their record that is not justified,” he said.
Even though the number and total amount of fund payments has dipped in recent years, the average payment has gone up. In 2012 to 2016, it was $3.6 million. In 1997 to 2001, it was $1.2 million.
That is likely because attorneys are turning down more cases that are unlikely to result in a large payment, Rottier said.
Justice may be BLIND… but still “CONTROLLED” by the ALMIGHTY DOLLAR
COLUMBUS, Ohio — Prescription painkillers are responsible for the largest number of opioid overdoses in Ohio, and state lawmakers want to further restrict prescribing the highly-addictive pills.
GOP lawmakers introduced companion bills in the House and Senate that would adopt national opioid prescribing guidelines, set dosage limits for opioids prescribed by dentists and primary care doctors and make addiction education and counseling available online.
Gov. John Kasich plans to announce on Thursday his own proposal to limit opiate prescriptions.
Ohio led the nation in opioid-related overdose deaths in 2014. Prescription drugs were responsible for about 22 percent of the 3,050 overdose deaths reported in 2015. Heroin and fentanyl were responsible for the majority of overdose deaths.
Sen. Jay Hottinger, a Newark Republican, said the package of reforms will prevent more people from becoming addicted to opioids and later turning to more potent drugs.
“We’re not going to be able to legislate our way out of this epidemic,” Hottinger said at a Wednesday news conference. “But this will save lives because it will slow the pipeline of addiction caused by overprescribing.”
Hottinger co-sponsored the Senate bill with Sen. Bob Hackett, a Madison County Republican. Republican Rep. Jay Edwards of Nelsonville sponsored the House version.
Under Senate Bill 119 and House Bill 167:
Primary care physicians and dentists could only prescribe up to the equivalent of 50 milligrams of morphine per day in no greater than three-day supplies unless they complete several requirements.
To prescribe greater amounts and supplies, doctors and dentists would have to complete eight hours of training about opioids and addiction and doctors would have to provide treatment for addiction. Exceptions are made for hospice, nursing home, chronic pain and cancer patients.
Addiction treatment centers or physicians treating patients for addiction must offer naltrexone, which blocks opioids’ effects on the brain, as an option.
State officials must make patient counseling and education available online.
The Ohio State Medical Association, which represents thousands of physicians, supports efforts to address the opioid crisis, spokesman Reggie Fields said. But Fields said such guidelines shouldn’t be mandatory and doctors should have discretion to best treat their patients.
“While two individuals may have the same condition, what’s effective for one might not be for another,” Fields said. “We want to avoid locking physicians in a cookie cutter approach.”
Fields said Kasich’s proposal gives doctors flexibility to make a clinical diagnosis in the best interest of the patient.
Between 2012 and 2016, the total number of opioid doses dispensed to Ohio patients declined by 20.4 percent — from a peak of 793 million pills to 631 million pills, according to the State Board of Pharmacy.
Data tracked through Ohio’s prescription reporting system showed both the number of pills prescribed by doctors and the number of patients taking them declined.
Fields said the state is turning a corner with prescriptions and should focus on making treatment more available.
A new law expanding addiction treatment options and limiting the amount of pills that can be dispensed to a 90-day supply takes effect April 6.
The legislation is called the bill “Daniel’s Law,” after a Germantown man who died from an overdose. Daniel Weidle battled addiction for eight years before he died at age 30. Weidle had been seeking treatment, his father Scott said.
“Ohio has the opportunity right now to take ownership of this issue and do everything in its power to become a leader in opioid prescription reform,” Scott Weidle said.
I had ALL of my teeth cut out today and was fitted for dentures which has led to EXCRUCIATING pain. Because I receive Tramadol from my pain management doc for my back, hips, etc., the oral surgeon and oncologist could NOT give me ANYTHING for pain after pulling all those teeth and fitting the dentures. All they could do was to give me extra shot
s of Novocaine which lasted about an hour. Both of them feel so bad that they keep calling me at home to see how I am doing and to apologize for not being able to prescribe anything for me. I “jokingly” told them I wish I knew where I could get something stronger since they are the only things that actually help with the pain but of course they couldn’t say anything but sheepishly laugh a little. Still, it was nice that they felt bad for me and at least wanted to check on me to see how I’m doing after that horrible ordeal. I was ok until I started waking up from the deep anesthetic then once the Novocaine started wearing off, that is when the shit hit the fan (They both knocked me completely out and gave me loads of Novocaine.) (I have pictures but they are disgusting as hell to post without specific request. There was a whole lot
of cutting and stitching done. I’m glad this forum is here. I may not be able to get any relief from my excruciating pain but at least I (sometimes) get a sympathetic ear and get to blow off steam and vent my frustrations from being in so much pain all the time.
The evidence that physicians and nurses do not treat pain adequately began to appear in the medical literature nearly 30 years ago.1 In the following decades, the accumulated data showed that many types of pain—acute pain, cancer pain, and chronic nonmalignant pain—were being undertreated.2 The reasons offered for undertreatment, usually characterized as “barriers” to effective pain relief, were remarkably consistent across the literature. These included insufficient knowledge among clinicians about the assessment and management of pain; the failure of health care institutions and professionals to make pain relief a priority; a lack of accountability for providing effective pain relief; physician concerns about regulatory scrutiny of their prescribing practices; and the persistence of myths and mis-information about the risks of addiction, tolerance, and adverse side effects associated with opioid analgesics.3
Despite numerous calls to educate health care professionals about pain management, only the rhetoric has expanded.4 Between 1995 and 2000, unrelieved pain has remained a significant problem.5 During these same years, state and national organizations were urging physicians to make pain relief a priority in patient care.6 Perhaps the outcome of 2 legal cases—the James case and the Chin case—might finally persuade the medical community that its duty to relieve pain and suffering is not only an ethical one but is enshrined in law.
In 1991, a North Carolina jury awarded $15 million in compensatory and punitive damages to the family of Henry James, a nursing home patient who died a painful death from terminal metastatic prostate cancer.7 The jury found that a nurse’s refusal to administer the opioid analgesics necessary to relieve Mr James’s pain, on the rationale that he would become addicted, constituted a gross departure from acceptable care. Significantly, no disciplinary action was forthcoming for either the nurse or the facility. Perhaps because the named defendants were a nurse and a nursing home, and no physician’s care was at issue in the case, the implications of the jury’s verdict largely escaped the attention of the medical community.
In 1998, William Bergman was admitted to Eden Medical Center in Castro Valley, California, in severe pain. Dr Wing Chin became his physician. Important details surrounding his 5-day hospitalization are in dispute between the Bergman family and those who cared for him. The hospital records indicate that at some point each day Mr Bergman’s pain was rated between 7 and 10 on a 10-point pain intensity scale, 10 being the worst pain imaginable. On the day of his discharge, a pain level of 10 appears in the medical record. Although a definitive diagnosis was not reached, a chest radiograph, combined with a long history of smoking, was strongly suggestive of lung cancer. Mr Bergman declined further tests, wishing to go home and receive hospice care. He died within a week of discharge.
Disturbed by what they perceived to be an inappropriate response to Mr Bergman’s pain, his family sought assistance from the national patient advocacy organization, Compassion In Dying. Based on an expert review, Compassion in Dying assisted the Bergmans in filing a complaint against Dr Chin with the California Medical Board. The board’s expert concurred that the pain management of Mr Bergman was inadequate, but the board declined to take any action against Dr Chin.
Compassion in Dying then assisted the Bergmans in filing suit against Dr Chin and Eden Medical Center.8 To recover damages for Mr Bergman’s pain and suffering once he had died, the action had to be brought under California’s elder abuse statute. To prevail under that statute, the Bergmans needed to prove that the care was not merely negligent, but grossly negligent or reckless. Eden Medical Center settled before trial. On June 13, 2001, the jury returned a verdict against Dr Chin of $1.5 million.
The nature and magnitude of the verdicts in James and Chin highlight a disturbing disparity between health care professionals and the lay public regarding the importance each attaches to undertreated pain. It is a disparity, however, that physician Eric Cassell noted almost 20 years ago: “The relief of suffering, it would appear, is considered one of the primary ends of medicine by patients and lay persons, but not by the medical profession.”9
Another message to physicians implicit in these verdicts is that there is a standard of care for pain management, a significant departure from which constitutes not merely malpractice but gross negligence. Even if professional boards might not hold their licensees to that standard, juries will. With the implementation of the new pain standards by the Joint Commission for the Accreditation of Healthcare Organizations, which recognize the right of patients to the appropriate assessment and management of their pain, public expectations will likely increase exponentially.10 To match these expectations, physicians will need to urgently improve their knowledge, skills, and attitudes toward pain relief.
She was a petite, shy 23-year-old girl who became addicted to heroin the same way as countless other young people from her small town in Wisconsin. She initially did well with buprenorphine treatment. But after about six months, she began using heroin again. She seemed to have two personalities. She agreed to take her dose of buprenorphine (brand not relevant in this case) in front of her mother each morning. But when she was away from home, she often used heroin. During our appointments she described being taken over by the using personality. “I don’t even get high from it, but I can’t stop.”
I don’t discharge addiction patients just for struggling with their illness. It’s virtually impossible to die from heroin overdose while on buprenorphine, so I view discontinuation of the medication as immoral in such cases. She was in counseling. She had been through residential treatment – twice if you count the time she was tossed out early for breaking a minor rule. That experience deserves a story of its own. Throwing patients to the wolves for violating curfew doesn’t seem consistent with the Hippocratic Oath I recited.
Many patients who struggle while treated with buprenorphine eventually get better, if the physician takes the bold step of continuing their treatment. But this young lady got worse, as did her family’s faith in buprenorphine. Her parents bought into the promise of a cure, and sent her to an out-of-state residential program—one with better marketing than those she already attended.
She relapsed on heroin a week later. Devastated, she asked the leader at her group home how to get back on track… she was told to pack her things and leave.-Jeffrey T. Junig
She was tapered off buprenorphine and placed on monthly naltrexone. Her parents were shown data from studies that showed abstinence rates similar to buprenorphine during the time patients are on naltrexone. She would stay on the monthly injections for six months, long enough, she was told, to get a jump-start on her recovery. She did as recommended, and transitioned from three months of residential treatment into a group home. After 6 months, the naltrexone was discontinued.
She relapsed on heroin a week later. Devastated, she asked the leader at her group home how to get back on track. In response, she was told to pack her things and leave.
She died two months later—about six months ago. To this day, I doubt the doctors or therapists of any of her three residential treatments know that she died. They continue to follow the same treatment plan, keeping patients alive for up to a year on injections of naltrexone, discharging them, and forgetting that they ever existed. When those patients die, nobody notices.
What is the primary goal when we treat opioid dependence? Making money? Creating jobs for the treatment industry? Shouldn’t the goal be the same with other diseases, i.e. to reduce the morbidity and mortality associated with opioid dependence?
Properly choosing between treatments requires outcome data, and is not possible when treatment failures are not counted. With other chronic diseases, doctors keep in touch with patients whether they do well or not. That is not the case with opioid dependence, where the ‘standard of non-care’ calls for patients to be abandoned when they do poorly.
In the absence of outcome data, traditional addiction treatment programs survive because of a misguided leap of faith by the lay public. The prevailing attitude is that the programs cost so much money that there surely must be some value to what they do! There is no denying that people addicted to heroin look better at discharge than admission. But gaining a few pounds and putting on clean clothes isn’t the same as a cure. When patients die months later, the programs blame them for ‘not wanting it bad enough’—if their deaths are noticed at all.
In the absence of outcome data, traditional addiction treatment programs survive because of a misguided leap of faith by the lay public. The prevailing attitude is that the programs cost so much money that there surely must be some value to what they do!-Jeffrey T. Junig
Treatments for opioid dependence should be assessed using the same logic applied to treatments for other diseases. Almost every disease has a ‘choice’ component where patients play a role in developing or worsening illness. We can compare the approaches to opioid dependence, for example, to the treatment of COPD, an illness usually initiated and aggravated by smoking.
What would we think of a pulmonology program where patients with COPD receive intensive treatment for a month, only to be discharged and forgotten? What if any patient who smoked a cigarette during that month was immediately abandoned, no matter how sick, without discharge planning? What if the sickest patients were forced to leave the premises? What if the few outcome studies of the programs found success rates below 10 percent? Would the FDA allow such programs to take the money—and hopes—of desperate patients?
One of the most twisted aspects of the buprenorphine debate is that doctors who prescribe buprenorphine are criticized for following and treating their patients long-term, when in reality they are the only practitioners who follow the full course of the disease.-Jeffrey T. Junig
Debates over opioid dependence treatment come down to one simple issue. One side believes that addiction can be fixed over the course of weeks or months. They believe that injections of naltrexone keep people from getting high for a period of time, while they are being fixed by group and individual therapy. On the other side of the debate are those who recognize the tragic number of people who die after leaving residential or Vivitrol treatment. The second group knows that addiction is just like other chronic diseases, and requires chronic, often life-long treatment.
One of the most twisted aspects of the buprenorphine debate is that doctors who prescribe buprenorphine are criticized for following and treating their patients long-term, when in reality they are the only practitioners who follow the full course of the disease. I am angered by the calls by politicians and district attorneys to waste precious resources on short-term measures that make good sound bites, but have little benefit for patients with a chronic, long-term illness.
Opioid dependence does not go away after three or six months of treatment. While naltrexone blocks opioid receptors for several weeks following injection, nobody uses the medication for more than a year or so. That relatively short course of treatment may appeal to hopes and wishes, but there is no evidence that patients experience any benefit when the medication is discontinued.
To keep it simple, the young people forced to take injections of naltrexone will only come back to our courtrooms, and our morgues, a year or two from now.
LEWISTON, Maine — When one of Gary Stuer’s four-legged patients gets injured, has surgery or is living with cancer, the Bethel veterinarian prescribes pain medicine.
Sometimes that pain medicine is an opioid.
“For years, we’ve had non-steroidal drugs, and we call that pain medication, but it’s like you or I taking ibuprofen,” he said. “For pure pain control, we have to rely on opioid-like drugs.”
But while Stuer likes such drugs for controlling animals’ pain, he doesn’t like what he has to do now to prescribe them.
Namely, check a human’s private prescription records.
“It really, really makes me uncomfortable to have to look at their history of opiates and then make a decision about their animals based on that,” Stuer, who owns the Bethel Animal Hospital, said.
He’s not alone. Veterinarians across the state are frustrated by their role in a new state law that was designed to curb drug abuse by setting limits on opioid prescriptions and requiring doctors to check the state’s controlled substances prescription monitoring database before writing prescriptions.
Vets say the law’s goal is laudable, but in their line of work, the new requirements don’t help and are a hassle at best and potentially dangerous at worst.
“If somehow someone got into it (they could note), ‘Gee, this person has OxyContin. Their house would be a good house to go rob,’” veterinarian Erich Baumann, co-owner of the Animal Emergency Clinic of Mid-Maine in Lewiston, said.
The law, Chapter 488, passed last year as emergency legislation, went into effect Jan. 1. It strictly limits opioid prescriptions for chronic and acute pain, except for people with cancer, in hospice, receiving palliative care or using the medication for addiction treatment. It also requires doctors, including vets, to check the state’s prescription monitoring database before prescribing and to refuse to write a prescription if the patient is over the new state-imposed limit.
Violators can be fined $250 per incident, up to $5,000 per year.
“We’re certainly aware of and sympathetic to the underlying push for this law. The opiate crisis and overdosing is a tragedy,” veterinarian Gail Mason, who co-owns the Bath-Brunswick Veterinary Associates and Portland Veterinary Specialists, said. “We’re responsible people and willing to do our part.”
Not all of Maine’s hundreds of veterinarians prescribe controlled substances, but many do — particularly when treating dogs or cats. They use a range of drugs, including tramadol and buprenorphine for pain, benzodiazepines for anxiety and hydrocodone for persistent coughing.
But Mason and other vets say they haven’t seen a problem with people taking their animals’ medications — possibly because most pet prescriptions are written for a fraction of the amount that would cause significant effects in humans. They say the solution hurts more than it helps.
“In general, definitely, veterinarians seem quite unhappy about it, mostly ethically concerned about checking a human’s information at all,” veterinarian Amanda Bisol, legislative chairwoman for the Maine Veterinary Medical Association and owner of Animal Medical Clinic in Skowhegan, said. “Part of it is because we don’t know anything about human medicine, and it’s actually quite different. The dosages and things for most pharmaceuticals are very different for humans and animals. We’re looking information up (in the database), and we don’t know how to interpret what we’re finding.”
Veterinarians’ other complaints about the law include the following:
— They don’t know whose prescription records they should be searching for within a family, when a pet-sitter brings in or picks up the animal or when the pet is cared for by a rescue organization with multiple volunteers.
— They don’t like the potential liability that comes with being able to access the database.
— They don’t like saying no to treating an animal’s pain.
— The database doesn’t allow vets to enter their prescriptions, so someone could get multiple medications from multiple vets without it being noted anywhere.
“It doesn’t serve any purpose except for me to humiliate a client, violate their privacy and then look at them and try to decide, ‘Hmm, are you a user?’” Mason said. “It’s beyond the purview of our practice as veterinarians, and it’s unreasonable for the law to ask us to do this.”
Some vets want to be excluded from the law completely. Mason wants Maine to do what she’s heard other states have done: have vets log prescriptions into a database and let software flag it if there’s a problem.
“I can’t live with (the current law),” Mason said. “I don’t want to access people’s medical records. I’m not their physician.”
The Maine Department of Health and Human Services is crafting new rules around the law. The department is expected to have those rules done by March 31.
A department spokeswoman declined to comment because the department is in the rulemaking process.
Vets hope the department’s rule changes will address their concerns. If they don’t, the veterinary association plans to push for changes within current law or try to get a new law passed.
In the meantime, some vets have started asking clients for permission to check their medication history when they write an opioid prescription. In Bethel, Stuer and his two associates have done so about 30 times in the past month. At the emergency clinic in Lewiston, Baumann does so several times per shift.
So far, no client has balked at either clinic.
“I still feel like it’s an invasion,” Stuer said.
Mason, however, hasn’t sought her clients’ prescription information and she doesn’t plan to. She believes she’s not alone.
“There are those of us who are not going to comply,” she said. “We’re just not.”
A multi-state class action complaint filed March 23 in federal court in Chicago accuses Walgreens of fraud, negligent misrepresentation and unjust enrichment in relation with the way it prices prescription drugs.
Named plaintiffs Dorothy Forth, Troy Termine, Cynthia Russo and the International Brotherhood of Electrical Workers Local 38 Health and Welfare Fund accused Walgreens of a “fraudulent and deceptive price scheme to artificially inflate the ‘usual and customary’ prices reported and used to charge” themselves and putative class members for generic drugs. The lawsuit doesn’t specify how much the plaintiffs believe Walgreens has allegedly overcharged, saying only that the amount in controversy exceeds the procedural threshold of $5 million.
According to the complaint, likely millions of individual customers who use health insurance to buy generic prescription drugs from Walgreens are paying more for certain drugs than cash-paying Walgreens customers enrolled in the company’s Prescription Savings Club, which is not a form of health insurance.
The complaint cites a Generic Pharmaceutical Association report indicating 89 percent of all prescriptions dispensed in the U.S. now are generic drugs. The plaintiffs also maintain pharmacies are not allowed to charge customers or third-party payors more for prescription drugs than its usual price.
Under the PSC, customers without insurance can buy prescription generics in tiers — $5, $10 and $15 for 30-day supplies and $10, $20 and $30 for 90-day supplies. The pricing package, per the complaint, “includes some of the most commonly used generics for cardiovascular, diabetes, pain, psychiatric illnesses, gastrointestinal disorders and other common ailments.
The complaint alleges Walgreens breaks the law by artificially inflating prices for generics on reimbursement claims submitted to third-party payors, such as Medicare, Medicaid and private insurers. The practice allegedly dates to 2007, and the action seeks either nationwide class certification or for action to be brought under fraud laws of Arizona, California, Colorado, Florida, Georgia, Iowa, Illinois, Louisiana, Minnesota, Missouri, Nevada, North Carolina, Ohio, Texas and Wisconsin.
Forth, of Texas, said she bought more than 20 generic medicines at Walgreens since 2012 using Medicare Part D coverage. She said she’s overpaid at least $285 compared to what she believes she would have paid if she’d used cash and participated in the PSC. Russo, of Florida, also uses Medicare Part D and said she overpaid by $130 since 2012. Termine, of Lousiana, had a Humana policy and said he overpaid by $8 — $7.15 for one 30-day prescription and $10.89 for another, both $5 tier one drugs under the PSC. IBEW Local 38 has beneficiaries in the 15 states named in the action.
The complaint incorporated a table showing drug prices in Suffolk County, N.Y., Orlando, Fla., and Philadelphia, at Walmart, Target, Shoprite and Winn-Dixie, contrasted with the usual and customary prices Walgreens submits to third-party payors, and the PSC cash price it charges. It argues against any tolling of statute of limitations, noting that “because Walgreens affirmatively concealed its pricing scheme, plaintiffs and the class had no knowledge until recently of the alleged fraudulent activities or information which would have caused a reasonably diligent person to investigate whether Walgreens committed the actionable activities detailed herein.”
In addition to class certification and a jury trial, the plaintiffs seek monetary, compensatory, consequential, statutory treble, punitive or exemplary and general damages and injunctive relief. They say all class members “are owed at least the difference between the amount they paid and the (usual and customary) offered to the general public. “
The plaintiffs sent a copy of their complaint to attorneys general in Illinois, Louisiana and Missouri.
Representing the plaintiffs in the action are Halunen Law, of Minneapolis; Scott+Scott, Attorneys at Law, LLP, of Colchester, Conn., and New York; Lemmon Law Firm LLC, of Hahnville, La.; Whitfield, Bryson & Mason, LLP, of Raleigh, N.C.; Brandner Law Firm, LLC, of New Orleans; and Tusa P.C., of Southold N.Y.
Former addict Miller Atkinson remembers when fentanyl-laced heroin hit the streets in Cincinnati: “It started trickling in, and we were like ‘Wow, that was good, we need to get more of that.’”
CINCINNATI, OHIO—Miller Atkinson was an addict from the very first time he shot up with heroin. “I fell in love with it. Everything else fell to the wayside,” says the 24-year-old. “There was nothing that could have stopped me from getting high.”
And that’s what he did every day, for 9 months, in his family’s upper middle class neighborhood in this Midwestern city. He dropped out of the University of Cincinnati. Like other users, he built up a tolerance to heroin and needed larger doses to find euphoria. Then, about 4 years ago, a powerful new combination hit the streets here: heroin cut with fentanyl, a synthetic opiate about 100 times more potent than morphine that’s used to alleviate pain during and after surgery and in late-stage cancers. “It started trickling in, and we were like, ‘Wow, that was good, we need to get more of that,’” he says. “It was more intense.” So much so that friends who shot up with fentanyl-laced heroin started dying.
Atkinson was one of the lucky ones. After several misdemeanors and a felony heroin possession charge, he got his life back on track, and he is now studying for the law school entrance exam.
Fentanyl and its analogs are new faces of a worsening scourge. The United States consumes 85% of all the world’s natural and synthetic opiates, which in 2015 factored in 33,091 U.S. deaths, up more than 4000 from the previous year, according to the U.S. Centers for Disease Control and Prevention. Opioid overdoses have quadrupled since 1999. When average U.S. life expectancies for men and women edged downward last year, for the first time in decades, many health professionals blamed opiate abuse.
The opium poppy is no longer the starting point for many of the opiates on the street. The new compounds, often sold mixed with heroin, originate in illicit labs in China. “For the cartels, why wait for a field of poppies to grow and harvest if you can get your hands on the precursor chemicals and cook a batch of fentanyl in a lab?” says Tim Reagan, resident agent in charge of the U.S. Drug Enforcement Administration’s (DEA’s) Cincinnati office.
Two milligrams of fentanyl—just a few grains clinging to a sample vial—is a lethal dose.
AP PHOTO/CLIFF OWEN
DEA classified fentanyl as a schedule II drug decades ago, which makes it a felony to sell or use the opiate without a prescription. But in China, until recently, fentanyl was largely unregulated. In late 2015, the drug agency persuaded its Chinese counterpart to add 116 synthetic drugs to its list of controlled substances; fentanyl and several analogs were included. In response, underground Chinese labs began tweaking the fentanyl molecule, which is easy to alter for anyone with basic knowledge of chemistry and lab tools. By adding chemical groups, unscrupulous chemists have created new, unregulated variants, some of them even more potent than the original.
Public awareness of the crisis spiked last spring, after music icon Prince’s death from an overdose of fentanyl. But in the months since then, the chemical one-upmanship has deepened the opiate crisis, as new and nastier substances appear on the streets in places like Cincinnati. The fentanyl derivatives not only allow makers and dealers to elude law enforcement; they blindside public health authorities and make addiction even riskier. “It’s just going to get worse,” Reagan says.
Last July, police and scientists here were bracing for a new villain—perhaps the deadliest fentanyl cousin yet. “We were hearing about something so dastardly we had to be prepared,” recalls Lakshmi Sammarco, the coroner for Hamilton County, which includes Cincinnati. Carfentanil, an elephant tranquilizer that apparently had never been studied in humans, was showing up mixed into heroin in nearby cities and felling addicts. That month, a Canadian man was arrested in Calgary after authorities intercepted a 1-kilogram package of carfentanil labeled as “printer accessories,” which he had ordered from China. Other synthetic opiates had found their way into Ohio via Canada, so it was only a matter of time before carfentanil would make the journey as well. “We all looked at each other and said, ‘Alright, buckle your seat belts, this is going to get very bumpy,’” Sammarco says.
Fentanyl crosses the blood-brain barrier with ease. It binds to opioid receptors and floods the brain with dopamine, which creates intense euphoria but also slows the heart and depresses breathing. For most individuals, a lethal fentanyl dose is about 2 milligrams—an amount so minuscule that in a test tube it looks like a few grains of salt clinging to the glass. Carfentanil is 100 times stronger, making it about 10,000 times more potent than morphine. Crime labs keep autoinjectors of naloxone, the lifesaving opioid receptor antagonist, within reach in case their personnel are accidentally exposed to synthetic opiates.
Realizing what they were facing, Sammarco and her colleagues shifted into crisis mode, warning first responders that carfentanil overdoses could require double or triple doses of naloxone. They cautioned users not to dose up alone, and banned cops and emergency crews from testing drugs at crime scenes. (Last September, 11 police in Connecticut fell ill after accidentally inhaling fentanyl that was kicked up into the air during a drug bust.)
Then, the bomb went off. Over 6 days in late August 2016, Hamilton County saw 176 drug overdoses, primarily from carfentanil, the coroner’s office says. After the initial shock wave, use of the drug ebbed—it was simply too powerful and dangerous for addicts and dealers looking to make a quick profit. “We get a little bit of breathing room,” Sammarco says. “But we’re always waiting for the other shoe to drop.”
Hoping to stem the tide of synthetic opiates, DEA has taken the fight to China, as prolific a maker of illicit drugs as it is of legitimate chemicals. According to a U.S.-China Economic and Security Review Commission report last month, “China is a global source of illicit fentanyl and other [new psychoactive substances] because the country’s vast chemical and pharmaceutical industries are weakly regulated and poorly monitored.” In response to U.S. pressure, China has scheduled fentanyl and several other derivatives.
But enforcement is tough. Chinese labs producing the synthetic opiates play hide-and-seek with authorities. On their websites, they list fake addresses in derelict shopping centers or shuttered factories, and use third-party sales agents to conduct transactions that are hard to trace. The drugs themselves are easy to find with a Google search and to buy with a few mouse clicks. A recent check found more than a dozen Chinese sites advertising fentanyl, carfentanil, and other derivatives, often labeled as “research chemicals,” for sale through direct mail shipments to the United States. On one website, carfentanil goes for $361 for 50 grams: tens of thousands of lethal doses.
The cat-and-mouse game extends to chemistry, as the makers tinker with fentanyl itself. Minor modifications like adding an oxygen atom or shifting a methyl group can be enough to create whole new entities that are no longer on the list of sanctioned compounds. Carfentanil itself was, until recently, unregulated in China.
The coroner’s office in Cincinnati overflows with work. Lab analysts have set up shop in makeshift office spaces in the hallway. They are coping with a months-long case backlog created by the waves of new opiates washing into the region. In Hamilton County, as in many other jurisdictions, drug dealers can be charged with manslaughter when a customer overdoses and dies, but prosecutors can’t charge a dealer without verifying what he sold. To confirm that victims have overdosed on illegal opiates and to support prosecution of drug dealers, Sammarco’s team must parse the chemical composition of seized samples.
Other users can’t help, as they generally “don’t know what they’re taking,” says Tom Fallon, a lead investigator with the Hamilton County Heroin Task Force. A computer readout of one sample in the crime lab here illustrates why. The batch includes heroin, of course, but also caffeine, an antihistamine, an unidentified fentanyl compound, carfentanil, and another nasty analog, furanylfentanyl. Some recently seized batches have also been laced with ketamine, an anesthetic that has gained popularity in China as a recreational drug.
When the carfentanil wave struck, the county lab scrambled to prepare its analytical tools. One challenge was simply finding samples to compare to seized material. Veterinarians no longer use the substance, and commercial labs don’t stock it. Eventually the coroner’s office procured an expired batch from a nearby zoo. By October 2016, the county toxicology lab had fine-tuned its testing of blood and urine samples using a gas chromatograph mass spectrometer, which can find carfentanil at its smallest detectable dose. The machine shears mystery molecules into fragments, weighs them, and compares the pattern of masses to those from a known molecule. Like splitting Lego creations, breaking up the molecules produces the same pattern each time.
Canadian police seized these printer ink bottles from China full of carfentanil, which is 10,000 times more potent than morphine.
ROYAL CANADIAN MOUNTED POLICE
Another challenge with carfentanil is the dearth of literature on how much would cause a human to overdose or die, explains Bob Topmiller, Hamilton County’s toxicologist. First responders and crime lab chemists are now building a body of research on its effects. “We’re not a research lab,” he says, “but there’s a lot of information we’ve been able to obtain over the last several months that we’ve been able to share with other labs,” such as molecular structures and toxicology reports.
Like other regions around the United States coping with a tide of mystery opiates, Hamilton County gets help identifying the compounds from DEA’s own facilities, including the Special Testing and Research Laboratory, a plain building in an industrial development in Sterling, Virginia. In contrast to the Hamilton County coroner’s office, the Sterling lab is brightly lit and uncluttered. Director Jeffrey Comparin and his team have at their disposal an arsenal of detection and chemical dissection tools for identifying unknown drugs. “It’s not uncommon for us to build up a molecular model from scratch as we go,” he says. A DEA chemist demonstrates by snapping a methyl group onto a plastic model of fentanyl.
China eventually banned methylfentanyl, driving down its production and pushing it deeper underground. Its crackdown on fentanyl and several analogs in 2015 led to a marked decline in those synthetic opiates in the United States, DEA says. And last month, after extensive negotiations with DEA, China added carfentanil and three more fentanyl analogs to its list of controlled substances.
Even before China scheduled carfentanil, the scourge had begun to fade in Ohio. Sammarco expects the final toll from that analog in Hamilton County last year, after all analyses are completed, will top 70 deaths. But a new threat has appeared. Traces of an unidentified fentanyl analog have cropped up in several batches from crime scenes. Hamilton County’s scientists will search for a molecular match, add it to the list—and hope the new wave is less deadly than the last.
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