Walmart preemptively sues US DOJ for clarification on opioid prescriptions

Marco Green
October 25, 2020

Walmart said the suit was promoted by the threat of what it called an "unjustified" lawsuit against it by the Department of Justice.

We are proud of our pharmacists, who help patients understand the risks about opioid prescriptions, and who have refused to fill hundreds of thousands of opioid prescriptions they thought could be problematic. Walmart is the country's largest retailer, and it operates more than 5,000 in-store pharmacies in the United States. Walmart said the DOJ is forcing the company's "pharmacists between a rock and hard place" by saying it will sue the retailer for not doing more to second-guess doctor's opioid prescriptions, while at the same time state health regulators are threatening Walmart and its pharmacists for going too far in interfering in the doctor-patient relationship.

In a lawsuit filed Thursday in the US District Court for the Eastern District of Texas, Walmart claimed the federal government is trying to shift blame for its own regulatory failings onto the company, and asked the court to clarify whether its pharmacists have the authority to refuse to fill prescriptions under the Controlled Substances Act.

If a pharmacist declines to fill a prescription written by a DEA-licensed doctor because of concerns about the doctor's judgement, the pharmacist would be making a decision without a medical license or knowledge of the patient, which could cause them to lose their license, Walmart states in the complaint. They are now threatening a completely unjustified lawsuit against Walmart, claiming in hindsight pharmacists should have refused to fill otherwise valid opioid prescriptions that were written by the very doctors that the federal government still approves to write prescriptions. But almost 70% continue to have active registrations with the DEA, the lawsuit says. But nearly 70 percent of the supposedly problematic doctors the authorities identified still have prescription privileges from the DEA, according to Walmart's suit. It also names the DEA and its acting administrator, Timothy Shea.

Federal prosecutors in Texas began investigating Walmart in December 2016 and informed the corporate it could be indicted over opioid issues within the spring of 2018, the criticism says. Walmart says it fully cooperated with the probe. In August 2018, Walmart said that officials at the Department of Justice recognized that there was no plausible basis for a criminal indictment, and the department formally declined to prosecute Walmart.

The initial investigation was a subject of a story in ProPublica published in March. ProPublica reported that Joe Brown, then US attorney for the Eastern District of Texas office, spent years pursuing a criminal case against Walmart for its opioid prescription practices, only to have it stymied after the retail giant's lawyers appealed to senior officials in the Justice Department.

Two months later, Brown resigned.

Spokespersons for the Justice Department and DEA didn't immediately respond to messages seeking comment on the suit.

Other reports by Click Lancashire

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