Cherokee Nation Takes Drug Distributors To Tribal Court

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Tops to prescription bottles are pictured inside the Wal-Mart pharmacy Sept. 22, 2006 in Clearwater, Fla. (Robert Sullivan/AFP/Getty Images)
Tops to prescription bottles are pictured inside the Wal-Mart pharmacy Sept. 22, 2006 in Clearwater, Fla. (Robert Sullivan/AFP/Getty Images)

As the nation’s opioid addiction and overdose crisis grows, the Cherokee Nation is launching the first-ever lawsuit against drug distributors that will be litigated in a tribal court.

The suit takes on companies including pharmacies CVS Health, Walgreens and Wal-Mart, and drug distributors Cardinal Health, Inc. and McKesson Corporation, alleging that they didn’t properly monitor prescription painkillers, which eventually "flooded" every Cherokee county.

Here & Now's Robin Young talks with Cherokee Nation Attorney General Todd Hembree (@toddhembree) about the lawsuit and about the toll of addiction in the Cherokee Nation.

Interview Highlights

On what laws the suit is based on

"The laws that we are basing this on are the statutes of the Cherokee Nation itself. We have the Fair Practices Act — and it's an act that is in several states and other jurisdictions — that what you put into the stream of commerce is not deceptive, not fraudulent. We have a nuisance and negligence civil conspiracy. One thing about the Cherokee Nation is that we have a very sophisticated court system, and I would say it is the best tribal court system in the nation, on par with any state that you could come across. We look forward to bringing this case in the Cherokee Nation as an act of our sovereignty and as an example of good due process that the Cherokee Nation provides.

"We feel that the defendants have violated federal law with impunity. They regularly pay multi-million dollar fines as if they were parking tickets, and we intend to try to curb that action to change the culture here. And the best way that we feel that we can do that and protect our citizens is through this lawsuit."

On where the lawsuit alleges distributors and retailers are failing to uphold their responsibility

"Each part of the system has specific duties and responsibilities. The doctors have the responsibility to write good prescriptions and not overprescribe. The retailers have the duty to point out suspicious prescriptions. The distributors have the duty to not oversupply a particular area. And the retailers and distributors have breached that duty. It's sort of like if I owned a dam and I opened up the floodgates, I could reasonably expect people downstream to be flooded. And it doesn't relieve you of any liability just to say, 'Well, it's not my fault. All I did was open the floodgates.' So we intend to be able to prove that these distributors and retailers willingly opened these floodgates."

"We have to make great efforts to ensure that we don’t lose a generation here."

Todd Hembree, on opioid addiction in Cherokee Nation youth

On how opioid addiction is affecting Cherokee communities

"There's not one aspect of our communities that opioids have not caused damage to. We see it in the health care that we have to provide, the additional expenditures in addiction and other related health matters that come on with that. We see it in our broken families with their increased Indian Child Welfare cases. With children being born addicted and parents being addicted that we have to put children in foster care. We see it in law enforcement cost. Every aspect of the nation is affected, but particularly our youth. We see a huge increase in addiction in Cherokee Nation youth. And it's been said that the youth may be a quarter of your population but it's 100 percent of your future. So we have to make great efforts to ensure that we don't lose a generation here."

On why he thinks the opioid crisis is hitting so hard in Oklahoma and the Cherokee Nation

"Well, Native Americans have a propensity to addiction twice that of the general population. We are an area that is not well-developed economically. The Cherokee Nation, as a community, has gone through generations of trauma. And that has, I believe, contributed to the propensity for addiction. So I do believe that, for a variety of reasons, and the statistics show this out, that it has hit Native American communities particularly hard, specifically the Cherokee Nation."

On the goals of this lawsuit

"Well when we began this lawsuit, obviously, you know, we talked about money. But the goal of our lawsuit, from the inception of it, is to attempt to change the behavior of these corporations. And, as an attorney general, I can say that there's two main ways that you can change a person's behavior. No. 1 is put them in jail, which we can't do in this instance. But, the second is to hit their bottom line hard enough that they rethink their actions. They have flooded their product — their dangerous product — to our communities here at the Cherokee Nation, so they shouldn't be surprised that they find themselves in our courts."

Statements From Defendants

Walgreens: Walgreens has declined comment.

CVS Health: CVS Health is committed to the highest standards of ethics and business practices, including complying with all federal and state laws governing the dispensing of controlled substance prescriptions, and is dedicated to reducing prescription drug abuse and diversion. We also have stringent policies, procedures and tools to ensure that our pharmacists properly exercise their corresponding responsibility to determine whether a controlled substance prescription was issued for a legitimate medical purpose before filling it. Our commitment to preventing prescription drug abuse also extends to our patient and youth education efforts, an industry-leading program to increase access to the overdose-reversal medication, naloxone, and a drug collection unit donation program to local police departments nationwide.

Cardinal Health: The people of Cardinal Health care deeply about the devastation opioid abuse has caused American families and communities and are committed to helping solve this complex national public health crisis. We are industry leaders in implementing state-of-the-art controls to combat the diversion of pain medications from legitimate uses, and have funded community education and prevention programs for a decade.

Our responsibility as a wholesale distributor is to do our part to prevent the diversion of pain medications from legitimate uses. We do this to the best of our ability based on our position in the prescription drug supply chain through a combination of advanced, state-of-the-art analytics, technology and on-the-ground deployment of investigators to evaluate pharmacies, scrutinize shipments and identify, block and report suspicious orders of pain medications. We continuously improve our processes to keep pace with those seeking to divert pain medications from appropriate uses while remaining committed to our critical role in ensuring patients get the medications they need.

Along with our education partners, we also created GenerationRx, an innovative national prescription drug initiative that includes employees as ambassadors and local pharmacists working together - for more than eight years - to prevent further opioid abuse.

Distributors like Cardinal Health operate as part of a multi-faceted and highly regulated healthcare system – we do not promote, prescribe or dispense prescription medications to members of the public – and believe everyone in that chain, including us, must do their part, which is ultimately why we believe the lawsuits filed against us are misguided, and will do nothing to stem the crisis. We will defend ourselves vigorously in court and at the same time continue to work, alongside regulators, manufacturers, providers, pharmacists and patients, to fight opioid abuse and addiction.

We strongly agree with HHS Secretary Tom Price that the best way to fight the opioid addiction epidemic is to “avoid creating dependence in the first place” by curtailing over-prescribing of these medications. We all have a role to play and Cardinal Health will continue our state-of-the-art efforts to make a difference.

McKesson: Providing prescription medications to patients with serious medical needs without letting it get into the hands of bad actors is a healthcare industry-wide challenge. An effective solution will require close coordination by all parties involved in the flow of these medications, including the doctors who write the prescriptions, the pharmacists who fill them, the pharmaceutical distributors who deliver pharmacies’ orders, the manufacturers who make and promote the products and the regulators who license the above activities and determine supply. McKesson has strong programs and processes in place to stop the shipment of controlled substances to pharmacies with suspicious ordering patterns and is committed to engaging with other stakeholders to advance meaningful solutions.

This article was originally published on May 15, 2017.

This segment aired on May 15, 2017.



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