SEATTLE (legal Newsline) - In a trial of three opioid drug distribution companies accused of causing an overdose epidemic in Washington State, defense attorneys on Thursday sought to portray the pill dispensing system as tightly organized, and influenced by prescribing doctors, not the companies.
This countered the ongoing argument of plaintiff attorneys; that the drug distribution system particularly in the years between 2002 and 2019 had been out of control from over-prescribing and unscrupulous doctors, and rogue pharmacies, shipping too many pills for profits unmindful of the danger.
“The prescriptions that doctors write will effect the shipments of distributors,” Dr. James Hughes, a witness called by the defense, told the King County Superior Court. “The doctors make the decision what drug to use. Fewer prescriptions means fewer drugs shipped in.”
The bench trial is being streamed live courtesy to Courtroom View Network.
Prescription drug distributors McKesson, Cardinal Health and AmerisourceBergen Corp. are accused of irresponsibly over-promoting and distributing opioid drugs to pharmacies and doctors' offices that led to hundreds of overdose deaths in the state. The Washington State Department of Health estimated 1,200 in 2020.
Distributors take pills from the manufacturers and supply them to hospitals, doctor’s offices and pharmacies. The most commonly shipped opioid drugs include OxyContin, Hydrocodone, methadone and fentanyl.
Washington State Attorney General Bob Ferguson is asking for $32 billion in damages to enact anti-drug programs, but a state victory could result in a much higher award when surrendered profits and penalties are added in.
Hughes, a professor of economics at Bates University, examined the role of medication payers (insurance companies) in impacting the shipments of pill distributors. He said most of the state’s residents were covered by some form of insurance and that payers only pay for medications they confirm are necessary.
“Are you offering an opinion that anyone is to blame (for the epidemic)?” Defense attorney Greg Halperin asked.
“No,” Hughes said.
In 2019, Hughes said 93% of Washington State residents were covered by insurance, 6.5% were not. Approximately 52% were covered by employer insurance, 19% by Medicaid, 13.8% by Medicare, the military covering 1.8%.
During 2019 insurance covered 96% of prescriptions, with 55% covered by Medicare, 23% by Medicaid (cash customers accounted for 3.8%).
The Department of Labor and Industry in 2013 adopted non-cancer chronic pain opioid treatment guidelines for insurers and medical professionals.
Hughes said reimbursements for prescriptions that were not medically necessary would not be made.
He said the (insurance) system could check the validity of prescriptions including data on the type of drug, the number of pills and dose, the identity of the patient and the prescribing doctor, also the identity of the pharmacy.
“An insurer can check if a (prescribed) drug is relevant,” Hughes said. “It considers the patient’s conditions and any other drugs taken alongside an opioid.”
Such detailed billing data Hughes added was also able to study the purchasing trends of pharmacies for a particular drug over a period of time.
Halperin asked if the state told the distribution companies they were shipping too many pills or too many prescriptions were being written.
“No,” Hughes responded.
"Did you see the state tell the defendants not to ship opioids?”
“I did not,” Hughes said.
Hughes said doctors were required to justify to insurers the rationale for prescribing an opioid for a patient, the number of pills and the dose. Physical therapy was an alternative. However, Hughes indicated that physical therapy visits to alleviate pain could be limited by insurance companies that would not reimburse for more frequent therapy visits.
“What is the impact?” Halperin asked.
“If you cut off non-pharmacy treatment (physical therapy), doctors have to resort to an alternative, one of which is opioids,” Hughes said. “It can lead to more shipments of opioids into the state.”
Hughes noted that physical therapy visits (insurance paid) could be limited to two or three per month.
“Opioids are one of the few options is that your understanding?” Halperin asked.
“It is,” Hughes said.
Halperin exhibited a graphic that counted adult opioid prescription users in Washington State in 2009 at 105,232, and the total number of prescriptions at 556,712. The median opioid dose (37.5 MG) was unchanged from 2006 to 2010 the document said, while higher doses declined.
"This suggests that treatment guidelines with dose guidance may be able to reduce high-dose opioid use without effecting median dose," the document read.
Under cross examination, David Ackerman, attorney for the state, asked Hughes if he had ever conducted a peer-reviewed study.
“No,” Hughes said.
Hughes agreed he had been primarily a (defense) witness for industry.
“You never had any board certifications.”
“No,” Hughes said.
“You never spoke with any employees of the distributors in preparing your report?”
“That’s correct. My report was restricted to payers (insurance companies).”
Hughes said details about what data the distributors had access to was beyond the scope of his report as well as distributor (anti-drug-diversion) obligations under the Controlled Substances Act (CSA).
“You don’t know if the distributors had access to claims (insurance) data?”
“They had no reason to (have such data),” Hughes said.
“Payers don’t have an obligation to prevent drug diversion under the CSA,” Ackerman said.
“That’s a legal issue,” Hughes said.
Hughes agreed that denial of reimbursement payments for opioid prescriptions by insurance companies could reduce the shipments of pills by distributors.
“The (shipment) reduction does not cause pain to be untreated,” Ackerman said.
“Yes,” Hughes answered.
Closing arguments in the four-month-long trial are expected to begin next week.