15:19, June 08 62 0 law.com

2017-06-08 15:19:05

 

Doctor's Defense for Overprescribing Drugs: Blame Big Pharma

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A Long Island doctor is using a novel defense against federal prosecutors accusing him of overprescribing opioid painkillers: He’s blaming the drug manufacturers.

In a motion pending in the Eastern District, Dr. Michael Belfiore argued that the multiple counts against him of illegally distributing oxycodone should be dropped, and that the “true culprits in the creation of the opioid epidemic, to wit: Big Pharma” should be held responsible.

“With all due respect to the government, its overly simplistic ‘knee jerk’ presentment to the grand jury totally ignored these compelling factors and wrongfully placed the blame on Dr. Belfiore,” Belfiore said in the motion.

The argument may be easier to make and sell in light of the growing wave of plaintiffs lawyers joining state and local governments in filing lawsuits against big pharmaceutical companies blaming them for the prescription opioid addiction epidemic and trying to recover taxpayer funds spent dealing with it. On Wednesday, the plaintiffs firm of Simmons Hanly Conroy filed separate lawsuits against pharmaceutical manufacturers and physicians on behalf of Dutchess, Seneca and Sullivan Counties following pending actions on behalf of Suffolk, Broome, Erie and Orange Counties.Although the pharmaceutical companies are not defendants in the Belfiore case, it is arguably the most creative lawsuit to accuse them of inundating the country with painkillers by deceiving doctors and the public about their safety, thereby playing a significant role in the nationwide epidemic.

In addition to going after Big Pharma through his defense in his federal criminal case, Belfiore has moved to intervene in the state civil case brought by Suffolk County, arguing that his complaint is “nearly identical” to the plaintiff-county’s.

“Dr. Belfiore, like many other doctors and their patients, is a victim of an opioid epidemic created by Purdue and other Big Pharma companies, which encouraged the aggressive prescribing of opioids for chronic pain,” the motion in Belfiore’s criminal case said.

Belfiore allegedly prescribed nearly 3,700 pain pills to three separate patients from September 2011 to August 2013, ranging from 248 to 2,910 pills per patient. Belfiore is a doctor of osteopathy (D.O.) who practices general family medicine and dermatology in Merrick, according to the superseding indictment. His original indictment charged him with prescribing far more. During that nearly two-year period, however, there was little, if any, awareness in the medical profession about the highly addictive nature of opioid painkillers—because that’s the way the drug manufacturers wanted it, Belfiore’s lawyer, Thomas Liotti, asserted.

And given that the standard for conviction turns on whether the physician prescribed the medication “without a legitimate medical purpose,” it is difficult to argue that he had no legitimate purpose when his prescribing practice aligned with the message sent by drug manufacturers, Liotti added.

“You’ve got [OxyContin and Dilaudid maker] Purdue [Pharma Inc.] and Big Pharma telling doctors, ‘Look, we’ve got this great medication that has no addictive quality, so you can prescribe it freely and not worry about your patients getting addicted,” Liotti said in an interview.

“While the government cannot indict itself, it has clearly misfired in this prosecution of Dr. Belfiore, a learned and caring physician who works tirelessly for his patients.”

Although the first indictment against Belfiore was dismissed because it failed to include key language alleging that the defendant prescribed the medication “without a legitimate medical purpose,” federal prosecutors have indicated their intent to present the case to a new grand jury, Liotti said. The case could be dismissed, however, on statute-of-limitation grounds before a second indictment is filed, he added.