Ruling Will Ease Distribution of Prescription Drugs by Doctors

by Mark Friedman  on Monday, Nov. 12, 2012 12:00 am  

Dr. Dana Carol Abraham of Little Rock specializes in breast oncology surgery. (Photo by Michael Pirnique)

A recent ruling by a Pulaski County circuit judge will make it easier for doctors to dispense prescription medicine from their offices, a development that the Arkansas Pharmacists Association has called “dangerous.”

“There’s not a public outcry for physicians to dispense,” said Mark Riley, executive vice president of the association. “There’s not a need … here.”

But others praised the ruling.

“I think not only could it be a huge change for doctors, I think it could be a huge change for patients,” said Sam Perroni, an attorney for Dr. Dana Carol Abraham of Little Rock, who challenged the Arkansas Medical Board’s policy of strictly limiting the dispensing of prescription drugs at doctors’ offices.

As a result of Judge Chris Piazza’s bench ruling last month on a motion for summary judgment, patients will soon have the option of getting medication from their doctors, Perroni said.

For nearly 30 years, in order for a doctor to get a permit to dispense medication, he or she had to apply to the Medical Board and “show a need.” In nearly all cases, the board denied doctors’ applications. That’s what happened in 2010 to Abraham, who specializes in breast oncology surgery. She appealed the ruling to Pulaski County Circuit Court and won.

As a result of the circuit court ruling, doctors won’t have to “show a need” to obtain the permit to sell medications, Perroni said.

“All they would have to say is ‘I want to dispense. I want my permit,’” he said. “And that’s it.”

Piazza’s ruling, though, is likely to be appealed. His order was being prepared and wasn’t entered into the record as of Wednesday.

Kevin O’ Dwyer of Little Rock, the attorney for the Medical Board, told Arkansas Business last week that he would wait before the ruling was entered before deciding his next move.

“No decisions have been made,” he said. “I don’t know what the order is going to say.”

Riley, of the pharmacy association, said he thought the ruling was dangerous because a judge decided how a professional board uses its discretion.

“The Legislature set up those boards to protect public health with a specific emphasis on the profession that they regulate,” Riley said.

The Arkansas Medical Society didn’t take a position on the issue.

“Certainly there will be some physicians who will want to dispense,” H. Scott Smith, director of governmental affairs for the Medical Society, told Arkansas Business last week. “There are physicians who want to dispense now, and that’s why you’ve got the case.”

The Case

Abraham asked the Medical Board for a permit to dispense prepackaged medicine from her office “to improve patient compliance, to promote patient safety,” according to a transcript of her December 2010 hearing before the Medical Board, which was filed as part of her lawsuit. Her application was denied because she didn’t show a need.

“The reason for the denial was never completely articulated, but ranged from the fact that Dr. Abraham’s office was 0.6 miles from the nearest drug store to Board members failing to understand how dispensing [prescription] drugs would be economically feasible for [Abraham],” according to Abraham’s lawsuit.

She appealed the ruling to the Pulaski County Circuit Court. She argued the language was vague in the 1983 statute that dealt with permits.

Before 1983, doctors in Arkansas could dispense medicine without a permit. In 1983, though, the General Assembly passed a bill that said doctors must go before the Medical Board and show a need before receiving a permit to dispense medicine.

“It was fatally ambiguous,” Perroni said. “Because the statute contained no definition for showing of the need, the need could be interpreted several ways. … When you start looking at the definition of need, you’re just all over the place.”

He said the only reason the legislation was passed was to protect the financial interests of the pharmacists. “There was no rebutting that,” Perroni said. “That went unchallenged.”

He said that when the Medical Board evaluated an application, board members didn’t consider what was best for the patient.

The Medical Board’s attorney, O’Dwyer, said he challenged the accusation about the origination of the 1983 law. “I disagreed with that,” he said. “I mean, you’re talking about legislation that occurred almost 30 years ago.”

As part of the lawsuit, Perroni sifted through nearly 30 years of requests from doctors to obtain the permit. He found that most of the time the requests were denied “for what we believe was arbitrary reasons designed to protect the pharmacies’ financial interests,” he said.

Riley, of the Arkansas Pharmacists Association, said the legislation wasn’t created to protect the financial interests of the pharmacists.

He said that while it’s the doctor’s job to diagnose and identify treatments, pharmacists are the ones who are trained in how best to use the drugs.

“We pride ourselves on being the last line of defense in giving the patient the opportunity of having all their medical history housed in one place with the person who is most qualified to know drug interactions and how you’re supposed to use it,” Riley said.

He said the reason doctors want to sell prescription drugs was to make extra money. Perroni said Abraham testified twice that “she hadn’t done any study whatsoever about how much money she could make off” selling prescription medications from her office. “Her sole reason for wanting to do it was the convenience of her patients.”

Perroni said a number of Abraham’s patients were on Medicaid and had to find transportation to her office. Patients then would have to find a ride to a pharmacy to fill their prescriptions.

“The patient ought to have the right to choose” where to get the medication, Perroni said. “There’s no law that says the patient has to get it from the doctor, but you ought to be able to choose.”

 

 

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