Purdue Pharma's Role in the Opioid Crisis
Introduction

The court case of US v. Purdue Pharma is a case that focuses on the Anti-Kickback Statute, which holds it a felony for an entity to accept kickbacks for providing services or items that are reimbursable by a federal program (Baird, 2021). Part of the problem with this case and others like it is that not everyone agrees on what constitutes a kickback. For example, Illiparambil (2020) writes in the Brookly Law Review that pharmaceutical “donations” should not be viewed as kickbacks—even though prosecutors could and have made the case that they act as such. However, kickback laws have been in existence for decades, the first going all the way back to 1931 (Raspanti, Roberts & Bosick, 2017). Today, the Anti-Kickback Statute has led to prosecutions and settlements with pharmaceutical companies like Purdue Pharma for over half a billion dollars (Kraschel & Curfman, 2019). Indeed, the Anti-Kickback Statute is a costly one to violate, with offenders liable for $100,000 per violation if convicted (Gore, 2020). Part of the problem is that the culture of health care today focuses so much on treatments that industries like the pharmaceutical industry thrive because they know there is a market for their drugs, which serves as treatments for illnesses. It therefore becomes just a matter of getting their drugs into the hands of health care providers who then prescribe them to patients—and to do that requires some incentive, such as a rebate or donation.

The Anti-Kickback Statute’s Importance

When judged with respect to the Anti-Kickback Statute it becomes a controversial practice, and one that Purdue Pharma has engaged in for years to get OxyContin into the hands of prescribers. The Anti-Kickback Statute makes it illegal for a company to deliberately provide payment in return for referral of patients or services—such as the prescription of a drug that a company makes (Gore, 2020). This statute is in place to prevent any conflict of interest from arising in the health care industry. The industry is supposed to put people first—not profit—but when there are for-profit companies like Purdue Pharma with billions invested and billions more on the line, it does become about profits. Making the most profit by getting health care providers to prescribe a drug like OxyContin is the name of the game for these companies. They try to get around the Anti-Kickback Statute by claiming that their rebates or donations are charitable or good-will actions and have no bearing on whether the provider prescribes the drug the company produces.

The statute is important because patients have a right to know that they are receiving care that is in their best interest as opposed to the best interests of a for-profit company that looks to exploit their illness so that it can sell a drug to them. In a free market system, the best treatments will naturally be in demand; but because it is a competitive industry, companies try to push their products in the market by getting providers to prescribe them—and this is where the kickbacks come into play. Purdue Pharma was sending its sales reps to providers and making arrangements with them to push OxyContin onto patients in...…focused on treatment rather than on prevention. Preventing poor health is not on their radar because if everyone is assisted in maintaining their health, the entire “treatment” industry would collapse and so too would the profits. It is therefore a matter of the organizational culture recognizing the true aim of health care and finding a way to pivot within that aim to give providers what they need so that they can help patients engage in preventive care.

Conclusion

Protecting the health of patients and securing their rights are the reasons health care laws are passed in the first place. The Anti-Kickback Statute was passed to prevent companies from taking advantage of patients by way of providers who might accept payoffs in order to push a drug or service or device onto a patient even if the patient did not need it. That appears to have been the case with Purdue Pharma, which sought to market the ultra-strong OxyContin by getting providers to prescribe it even though it was not needed by patients. The public began to notice when the opioid abuse spun out of control and people became addicted to the drug that Purdue Pharma was creating and using kickbacks to get to market. Underlying this problem, however, is the problem of culture: health care needs to get back to preventive medicine rather than focusing so much on treatments. That was one of the goals of the Affordable Care Act and it is one that hospitals need to embrace so that they do not become ensnared in violations of the Anti-Kickback Statute.