Boone Co. drops lawsuit against 6 pharmacies

Staff Report

September 25, 2013

MADISON – For over a year, two Boone County pharmacies have been under investigation for selling an extremely high volume of narcotics.

A few weeks ago, the Boone County Commission signed a lawsuit with two Charleston law firms against these two pharmacies allowing attorneys to proceed forward with the investigation.

But a change of heart by Commission President Mickey Brown has led to dismissal of the suit, following a meeting of the County Commission last week in Madison.

Although Prosecuting Attorney Keith Randolph clearly disagreed with the Commission decision in the matter, the Prosecutor said he understood the Commission had a right to act as it did.

In presenting a proposal to start the investigation last year, Charleston lawyer Jim Cagle told the Commission that drug-trafficking is an “epidemic” in Southern West Virginia. At the August 21, 2012 Commission meeting in Madison, Cagle spoke on behalf of himself and fellow Charleston attorney Rudy DiTrapano.

Cagle laid out the reasons he and DiTrapano felt a lawsuit and investigation were called for. One of the primary points made by Cagle during his lengthy presentation was that “out-of-state” firms, such as chain pharmacies were more or less a partner in illegal drug trafficking.

Cagle said pharmacists have an absolute right to refuse to fill any prescription that “looks suspicious.” He went on, “two components of this illegal drug trade are the users and the physicians who prescribe too many or inappropriate drugs.” Cagle described some doctors as operating “pill mills” and said they have to have “cooperating pharmacists” to complete the transaction.

While targeting out-of-state pharmacies may have been a noble goal for the Commission, minds were changed when Commissioners learned that two local pharmacies were being targeted.

Brown, who said he is a friend of both pharmacies involved, also said local physician, Dr. Ron Stollings, had told him a pharmacy has an “absolute duty” to fill any prescription written by a doctor. Stollings, who is also a State Senator, was quoted as saying targeting the locally-owned pharmacies was “a mistake.”

Brown appeared to take the matter to heart at last week’s meeting. While he said he recognizes “there is a drug problem in Boone County, spurring an increase in crime” Brown said he did not think the two local pharmacies were guilty of inappropriate behavior.

Summing matters up, Brown said he was “misled by the Sheriff, the DEA (Drug Enforcement Agency) and the Prosecutor” regarding the matter. Brown said he could not support continuing legal action against the two pharmacies in question.

Proponents of the lawsuit, including various law enforcement, lawyers and citizens were in attendance attempting to understand the reasoning behind the Commission President’s comments.

Randolph said after the meeting, where Commissioners approved withdrawing any lawsuit and investigation on a 2-1 vote, that he did not agree with the decision. “Still, I know they (the Commission) have a tough job to do and I won’t criticize them for what they’ve done.”

Randolph did say, however, that he took exception to Brown’s characterization that he and the other law enforcement officials had “misled” the Commission. “I don’t believe any of us did that,” he said.

Brown and Commissioner Eddie Hendricks voted to drop the legal activities while Commissioner Atholl Halstead voted “no.”

In the lawsuit that has now been dropped, but was filed on Sept. 3, 2013, the county named Larry’s Drive-In Pharmacy, Medicine Stop, Inc., Meds 2 Go, Inc., Meds 2 Go Express Pharmacy, Inc., Alum Creek Pharmacy, and Trivillian’s Pharmacy of Kanawha City, Inc. as defendants in the case and accused them of helping to cause and contribute to the prescription drug abuse epidemic in Boone County.

“These defendants have profited substantially from their participation in prescription drug abuse,” the suit states, which has cost the county millions of dollars annually and destroys the very quality of life in the community.

These “pill mills,” as they’ve been labeled in the lawsuit, disguise themselves as legitimate pharmacies, but in reality are contributing to the county’s prescription drug abuse problem in a big way.

The suit alleges the “pill mill” pharmacy defendants have not acted in accordance with the law and accepted standards of care. They alleged they have failed to establish effective controls and procedures against the diversion of controlled substances; failed to design an effective system to flag suspicious orders; failed to operate a system to flag suspicious orders; and failed to report and inform authorities of suspicious orders.

West Virginia is one of the states with a hotbed of problems related to the illegal distribution of prescription narcotics.

Law enforcement and state and federal prosecutors have gone after users, dealers and over-prescribing doctors in an effort to combat the drug abuse epidemic.

Several of the defendants, however, claim these allegations are not based in fact and that their pharmacies are highly regulated by the West Virginia Board of Pharmacy and the Federal Drug Enforcement Agency (DEA).

Arlie Winters, Compliance Coordinator for the West Virginia Board of Pharmacy, says all pharmacies in the state are inspected every two years.

He confirmed that the state Board of Pharmacy has a very good controlled substance monitoring program with a detailed data base of all controlled substances being prescribed.

“A pharmacy can refuse to fill a prescription, but they must have a valid reason,” he said.

Winters says the Board receives and investigates several complaints about pharmacies each year.

“Many are not substantiated and some are,” he explained. “Those that are substantiated may face fines, other penalties and even the possible loss of their license in some cases.”

Winters said there are 750 to 800 licensed pharmacies in West Virginia.

“West Virginia’s pharmacies are very well monitored,” he said. “The Board, along with the federal Drug Enforcement Agency, keeps a very close watch on how much controlled substances are going in and out of West Virginia pharmacies.”

Winters said the six pharmacies named in the lawsuit were not under investigation or found to be out of compliance at this time.

The lawsuit says the defendants name were “on notice” about the prescription drug epidemic and that prescription they were filling were being diverted to drug dealers, but it doesn’t say what agency or individual put the pharmacies “on notice” or how they put them on notice.

They do say that Boone County’ law enforcement community and prosecuting attorney’s office estimated that most of their caseload is related either directly or indirectly to the prescription drug abuse epidemic and those agencies expend the greatest portion of their budgets to address crimes and investigations that are related to the prescription drug abuse epidemic.

However, the pharmacies claim they are regulated by the West Virginia Board of Pharmacy and the federal Drug Enforcement Agency and are not under any investigations or have never been notified of acting contrary to accepted standard of care by either agency.

“Would it not be fair to say that one of these agencies (the state Board of Pharmacy and the federal DEA) would have investigated us or substantiated some type of wrongdoing prior to this lawsuit being filed?” one pharmacist whose pharmacy is named in the lawsuit said.

One person in the local law enforcement community called this lawsuit “a new strategy in the fight against illegal drug distribution.”

“If the community or anyone else thinks we can curb this prescription drug epidemic problem without holding pill mill doctors and pharmacies accountable they are not living in the real world,” he said. “We have to go after those in the distribution chain.”

However, several doctors and pharmacists say they worry that frivolous lawsuits and over-reaching prosecution will hurt patients with chronic pain and drive up costs for everyone.

“These pharmacies are small local businesses in our communities and there are agencies that highly regulated them,” one local doctor said. “Let them do their job and stop these types of frivolous lawsuits that do nothing to address the real issues and problems of prescription drug abuse.”

On September 6, 2006, the DEA published in the Federal Register a Policy Statement, Dispensing Controlled Substances for the Treatment of Pain. The purpose of the Policy Statement was to make clear the longstanding requirement under the law that physicians may prescribe controlled substances only for a legitimate medical purpose in the usual course of professional practice.

“In no way should this interfere with the legitimate practice of medicine or cause any physician to be reluctant to provide legitimate pain treatment,” the DEA said in the statement.

The DEA goes on to say that the law does not require a pharmacist to dispense a prescription of doubtful, questionable, or suspicious origin. To the contrary, the pharmacist who deliberately ignores a questionable prescription, when there is reason to believe it was not issued for a legitimate medical purpose may be prosecuted along with the issuing practitioner, for knowingly and intentionally distributing controlled substances.

However, the defendants in this civil lawsuit claim they have never been prosecuted or investigated for deliberately ignoring a questionable prescription and follow both state and federal laws regarding the distributing of controlled substances.

It remains unclear at this time if local law enforcement or prosecutors in Boone County will continue with criminal investigations in this matter.

The DEA’s Pharmacist’s Manual can be found online at http://www.deadiversion.usdoj.gov/pubs/manuals/pharm2/pharm_content.htm