Even during a raging public health disaster, caution and common sense usually make good law. Happily, a federal district judge in Delaware showed both virtues in a Nov. 19 order delaying proceedings in a public health case.
As most readers have preconceived notions about the disaster — and no, we’re not talking about the coronavirus pandemic — let’s not name it just yet. Instead, to understand why the judge’s caution was appropriate, let’s consider what’s at stake from the defendant’s point of view.
Imagine you lead a major corporation employing many thousands of specialists nationwide in a field carefully licensed and regulated. Your specialists do the bidding of even more rigorously licensed professionals, and most states have laws punishing your hired specialists and your business if they do not fulfill the orders of those professionals. Indeed, some 13 states already are waging or threatening legal action against your team for failing to fill enough of those orders.
Moreover, by fulfilling those orders, your team provides relief from unspeakable agony for cancer patients, those in recovery from surgery, and millions of others in legitimate distress. Used correctly, the product you dispense is a godsend.
Yet here comes the Department of Justice, with all its massive resources arrayed against you, to charge you not with failing to fill the orders from the professionals but to prosecute you for filling too many of them. Because you allegedly fulfill too many of those orders from duly licensed professionals, the prosecutors want to blame you, and make you pay, for the misuse of those products by others down the line.
That’s the position Walmart and its pharmacists are in right now as the DOJ wages a lawsuit blaming it for exacerbating the opioid-abuse epidemic that has claimed more than 100,000 U.S. deaths in a single year.
Walmart is in a jam. The states want to punish it, according to explicit state law, for doing too little, while the feds want to punish it, according to remarkably vague federal law, for doing too much. The feds say that even though Walmart’s pharmacists have fulfilled duly filed, and only duly filed, prescriptions from physicians licensed by the states and registered with the Drug Enforcement Administration, the pharmacists “failed to detect and report at least hundreds of thousands of suspicious orders.” The folks at the DOJ, though, haven’t identified a clear standard for determining which doctors’ orders are righteous and which are “suspicious.”
Perhaps, just for argument’s sake, there is something to be said for interpreting vague federal law such that pharmacists should balk if too many opioid prescriptions come from certain doctors, even if those doctors are duly licensed — or maybe the corporation should have told its pharmacists to look for other red flags not specifically identified by law.
The DOJ cites 1975 case law in which the Supreme Court held that prosecutors can use the federal Controlled Substances Act to penalize doctors for prescribing narcotics outside “the usual course” of professional obligations. The legal question in the federal case against Walmart is: What standard determines the “usual course”?
As it happens, two consolidated cases before the Supreme Court this term address that same question about the “usual course of professional practice,” albeit, as in the 1975 case, with regard to doctors ordering the prescriptions rather than the pharmacists filling them. Judge Colm F. Connolly in Delaware, overseeing the Walmart case, quite reasonably wants to see if the Supreme Court’s decision in those cases provides more precise guidance for what actually constitutes “the usual course.”
Common sense says that if the high court determines that even the doctors who recklessly, but not intentionally, overprescribed the opioids aren’t liable for the harm to those who misuse them, then surely the pharmacists can’t be penalized for failing to recognize the doctors’ recklessness. The doctors, not the pharmacists, are the primary decision-makers in the provision of medicine, whereas pharmacists are somewhat in the position of functionaries.
As this newspaper editorialized in February, “Neither [explicit] law nor logic requires [pharmacists] to put themselves between doctors and patients as some sort of all-knowing arbiter of whether legal medicines are being abused.”
Anyway, Connolly on the 19th put a “stay” on the DOJ’s case against Walmart in order to wait for the Supreme Court to rule in those doctors’ cases. On Nov. 23, meanwhile, a jury ruled against pharmacies in a somewhat similar federal case filed not by the DOJ but by two Ohio counties, although the federal appeals court has already hinted there may be grounds for appeal. By issuing his stay in this Walmart case, Connolly also allows more smoke to clear from the Ohio decision.
Connolly is demonstrating prudent jurisprudence. A judge, like a doctor, can do great damage by rushing to provide the wrong remedy for the ailment at hand.
