Purdue Pharma Should Have to Supplement MSAs

Commentary, Medicare Set-Aside Blog, News and Events on May 13, 2016
Posted by Jennifer Jordan, JD, MSCC

On May 11, 2016, Circuit Judge Steven Coms in Pike County, Kentucky, ruled to unseal records related to a 2007 suit brought by the State’s Attorney General against OxyContin manufacturer Purdue Pharma. The suit was settled in December with no admission of liability and a measly $24 million dollar contribution to the state coffers. As with all Purdue suits, the company sought protective orders prohibiting company documents containing sensitive information about internal business processes used as evidence from becoming public. But Boston Globe affiliate STAT, an investigative health news outlet, requested that the court unseal the record. And Judge Stevens found “no higher value than the public (via the media) having access to these discovery materials so that the public can see the facts for themselves.”.

The document most sought after is the deposition of Richard Sackler, former company president and member of the family that owns Purdue. Prior to OxyContin, Purdue sold several moderately successful products, like earwax remover and laxatives. Sackler was personally involved in the development of OxyContin in the mid-80s as well as its marketing a decade later. You may recall that at about that time, the only study available in Micromedex about opioid addiction was one paid for by Purdue involving maybe 14 people, none of which presented with signs of addiction therefore the drug was deemed safe. The sealed records in question allegedly show that soon after it became apparent in the late 90s that people were in fact becoming addicted, Sackler met with top company executives for how to respond to the accusations. In a 1997 email, Sackler suggested that insurance companies were using potential abuse as an excuse to not pay.

Besides continued speculation that the company that knew of addictive qualities and purposefully downplayed them in their marketing efforts, even the company’s claims that OxyContin is a 12 hour drug has recently been called into question. Although FDA approved and marketed as providing 12 hour relief, we most frequently see it prescribed in 8 hour increments filled 90 pills per month. Some of the addiction problem is now being blamed on the drug wearing off sooner than advertised and the return of excruciating symptoms of narcotic withdraw partly to blame for overdose or addiction. And again, it is being said that the company knew about this problem all along.

With all the talk currently about what is wrong with the workers’ compensation system, the pharmaceutical industry really needs to take a great deal of responsibility, alongside the physicians that they convinced to push their products. And the workers’ compensation system has fostered and funded legalized drug abuse. Through 15 years of creating MSAs, the MSP industry was in prime position to witness the problem unfold. Many may recall the 2007-2008 period when OxyContin, Actiq and Duragesic patches were being dispensed like candy (oh wait, Actiq really is a lollipop) and abuse was really at its peak. Many states do not have medical controls and in those that do, unwavering deference is granted by the state agencies to the physicians as knowing what is in the best interests of their patients. Certain doctors in certain states seems to produce the most records that cross our desks with the heaviest utilization and always seem to adopt the latest, greatest new brand name drug. We get excited about a patent expiration on the horizon, only to be met with a new dosage in between the 2 that just went generic or an extended relief version and we back at brand named pricing. Then there are the scripts to combat the side effects of the opioids, like when you need something to stay awake during the day, then something to sleep at night, and something to address the opioid induced constipation, and then something because your stomach can’t handle all that medication and finally something for the depression because nothing you are taking makes the pain go away, it just hides it for a while.  And when questioned why do that to these poor people, many physicians take great offense that we dare challenge their integrity as they took an oath to do no harm. And then to add insult to injury, we eventually settle these cases and arm these addicts with sufficient funds to feed their addictions for life without state oversight under the premise that we are somehow protecting Medicare’s interests.

Although disappointing to see the 9 year old lawsuit settle with no admission of guilt or actual resolution, the government is finally taking some action. You may have also noticed in the news yesterday that the House passed a bill 413-5 authorizing $103 million in grant funding to tackle the opioid epidemic.  While great that we are finally doing something about the problem, the bill only proposes to address the back end after it is already too late. The funds will support things like training first responders how to better deal with overdoses and prison systems to rehabilitate addicts after they are incarcerated. What we really need is to stop the dispensing in inappropriate situations but several groups of lobbyists will never let that happen. If there is one thing that at least gets fixed during these National Conversations on the Future of Workers’ Compensation, let’s hope that we can at least stop forcing employers to fund injured workers’ drug habits, particularly when given so little control during the creation of the addition. Purdue needs to fix this problem, not the insurance industry and not the tax payers. The Sackler family is reported by Forbes to be worth $14 billion.  With average wholesale price of 40mg OxyContin currently listed at $11.75 per pill, annual sales over $1.5 billion and the measly  $24 million settlement to Kentucky, it would appear that they could do a little more.

Judge Stevens did the right thing. Let’s hope the appeal goes well so we can finally see what they really knew about OxyContin all along.