Medical Board action doesn't end probe of execution drug | Arkansas Blog

Friday, June 9, 2017

Medical Board action doesn't end probe of execution drug

Posted By on Fri, Jun 9, 2017 at 10:49 AM

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The Arkansas State Medical Board Thursday dropped its investigation of a drug obtained by the state Correction Department for executions because it found no licensed physician was involved in the state's acquisition of vecuronium bromide. This doesn't end the review of how the drug was obtained.

McKesson, a drug distributor, had sued to get back drugs it supplied to the state because it said they were obtained under false pretenses. It said it wouldn't allow the Pfizer-made drug to be used in executions. A paper trail indicated the name of a doctor with the firm that contracts to provide prison health services in the prisons was on the purchase order for the drug. The Correction Department has said it did nothing improper.

Kevin O'Dwyer, the Board attorney, told the Medical Board he found no evidence that any "licensees" had acted to obtain the drug. He was quoted as saying he couldn't investigate the Correction Department.

I have a followup question for O'Dwyer about the board's ability to investigate the unauthorized practice of medicine. If no doctor obtained the drugs, could the board act if somebody acted in the place of a doctor to obtain and use drugs?

UPDATE: O'Dwyer says his agency only has jurisdiction over licensees. When it does learn of unuathorized medical practice or improper use of a doctor's name he said it typically refers the matter to the attorney general or the prosecuting attorney. He said he presumed authorities were aware of this potential misuse of a doctor's name. Indeed. The attorney general's office is busy defending it in court.

Whether this is a moot point or not at the Medical Board, the issue is still very much alive, as indicated yesterday by a procedural ruling by the Arkansas Supreme Court.  It expects a full briefing on the case brought by McKesson to stop use of the drug in executions.

This is the now-famous case in which Circuit Judge Wendell Griffen agreed that McKesson had made a case of state dishonesty and temporarily enjoined the state from using the drug it got from McKesson, effectively a halt to planned executions. An emergency state appeal followed. The Supreme Court threw Griffen off the case for his involvement in a death penalty protest later the day of his ruling (on a matter of property law, not the death penalty). The case then went to Judge Alice Gray, who ruled as Griffen did. The state again got an emergency Supreme Court order staying her injunction. That allowed executions to go forward.

McKesson has indicated that it intends to pursue its claim for return of unused drugs, though they may now be out of date. Thus, the Supreme Court may yet review how the state came to obtain drugs to kill that the maker did not want to be used for that purpose. The Supreme Court order staying Gray's injunction remains in effect, said the Supreme Court Thursday, "pending the separate appeal; and a briefing schedule for the appeal will issue when the appellants [the state] lodge the full record." The state is seeking to have the case dismissed on the ground of sovereign immunity.

In its pleading, this is how McKesson said the state ultimately got the drug:

Had ADC disclosed to McKesson the intended use of the Vecuronium, ADC could not have obtained it from McKesson. McKesson would not have permitted the order. McKesson was led to believe that the intended use of the Vecuronium was, like ADC’s other purchases from McKesson, made in reliance on the medical license that ADC earlier had provided to McKesson to keep on file for its prescription purchases, and was for use in a legitimate medical application,which does not include the administration of capital punishment. The order was placed on or about July 11, 2016.
The state, in addition to asking the lower court to dismiss the case outright, is also seeking to use a new 2017 law to transfer the case outside of Pulaski County. It has given no reason for desiring a change of venue, nor does the new law require one. It's legislation from Sen. Trent Garner to enable moving many lawsuits against the state out of Pulaski County where they've traditionally been handled. The law covers cases in which no "resident" of Arkansas is a party. McKesson contends it meets the definition of resident.

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