This past Sunday’s Los Angeles Times tells that Purdue Pharmaceuticals, manufacturer of Oxycontin, has for about a decade maintained a lengthy list of Oxy prescribers who in Purdue’s view potentially overprescribe or otherwise put patients at risk. Purdue won’t disclose the list, though, and doesn’t reveal the criteria for how it decides whether to share an occasional name with a medical board or the DEA. This is extremely troubling, and Purdue’s position raises several major legal and policy concerns:
1. Purdue’s being stingy about revealing names or the criteria for revealing names to law enforcement leaves the company’s motives suspect and prevents relevant government agencies from being alerted to possible overprescribing or patient risk.
2. The list has been maintained since 2002; Oxy has been on the market since 1996. The very existence of the list suggests that Purdue knows the addiction potential of the drug it for years has marketed as safe and generally non-addictive. Wouldn’t an overriding interest in competent medical practice, safe prescribing and patient safety compel the sharing of information between the manufacturer, doctors and regulators?
3. The company’s own partial list of “red flags” for signs of overprescribing or shady Rx practices — long patient lines, people nodding off in the waiting room (in the manner of heroin addicts’ being “on the nod”), cash transactions, and lots of young patients supposedly in excruciating and ceaseless pain — includes the same signs law enforcement looks for, too. Why not share this information?
4. If a doctor is on the list, and is prosecuted for prescribing-related criminal offenses, is the list now supposed to be relevant evidence of guilt?
5. If a doctor is not on the list, and is prosecuted for prescribing-related criminal offenses, is the absence of that doc’s name on the list now exculpatory evidence of innocence?
My guess is that the exposure of the list’s existence will prompt (a) prosecutors and investigators to start issuing subpoenas for the list; (b) defense attorneys like me to subpoena the list or otherwise make the list’s existence an issue in a medical provider’s defense; (c) legislation at the state or federal level, or the threat of legislation, to compel Purdue to share information with appropriate authorities; (d) Purdue’s worrying about civil liability for previously not disclosing the list.
I expect we’ll be hearing more about this issue in the future. In the meantime, medical providers and their insurers and malpractice defense lawyers should know what the signs of risky prescribing are, and know how to ameliorate patient risk and maximize the practice and the appearance of practice of competent, informed medicine.
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