…since, after all, this is a medical malpractice blog. But this somewhat old post caught my eye and led me to search and find yesterday’s NYT article on OxyContin.

The $634.5 million in penalties and fines that the maker of the painkiller OxyContin and some of its executives agreed to pay to resolve a false marketing charge represents 90 percent of the profits it initially made from the drug, according to court documents filed by federal prosecutors.

The company, Purdue Pharma, agreed to the penalty, one of the largest ever paid by a drug company in such a case, after an affiliate, Purdue Frederick, and three current and former executives pleaded guilty last month to criminal charges that it had misled doctors and patients when it claimed the drug was less likely to be abused than traditional narcotics.

As the MedSkool blogger tells it, the reason for the massive fine had to do with miscommunication.

while the FDA approved the Purdue claim that the time released formula might decrease the addictive potential of OxyContin compared to other opiate analgesics, Purdue went out and played up that as a fact. And in some cases just blatantly lied about the evidence for such a claim.

He raises though an interesting point. The salesmen presented a theory as a fact. That was wrong. But why did the executives plead guilty? “There doesn’t appear to be evidence during this time that Purdue knew the abuse potential of OxyContin and was hiding it.” Furthermore, the abuse involved snorting the drug as powder, something the labeling warned against (not to mention common sense). Just “how far do we want to go in criminalizing business practices?”

Thus, from the earlier story (emphasis added),

The three top former and current Purdue Pharma executives pleaded guilty to criminal misdemeanor charges of misbranding, a charge that does not require prosecutors to show knowledge or intent on the executives’ part. However, the three individuals ran Purdue Pharma during the period in question.

Those executives are: Michael Friedman, the company’s president, who agreed to pay $19 million in fines; Howard R. Udell, its top lawyer, who agreed to pay $8 million; and Dr. Paul D. Goldenheim, its former medical director, who agreed to pay $7.5 million.

In a separate statement, Purdue said: “Mr. Friedman, Dr. Goldenheim (while at Purdue) and Mr. Udell neither engaged in nor tolerated the misconduct at issue in this investigation. To the contrary, they took steps to prevent any misstatements in the marketing or promotion of OxyContin and to correct any such misstatements of which they became aware.”

So it appears to me, that because people abused a drug in a way that the company warned against that someone has to pay. Now the later story gives us assurances like,

In their response to Judge Jones’s questions, prosecutors, along with disclosing the 90 percent figure, explained why they had agreed not to recommend incarceration for the executives.

They stated that they believed that the conviction of the officials would serve as a deterrent to other pharmaceutical industry executives. And they noted that the individuals’ deals were part of the overall agreement with the company.

“Each corporate official will bear the stigma of being a convicted criminal,” Mr. Brownlee stated in that filing.

The three men are Michael Friedman, the company’s president; Howard R. Udell, its top lawyer; and Dr. Paul D. Goldenheim, its former medical director.

Some parents of teenagers and young adults who became addicted to OxyContin or died in overdoses in which it was a factor are expected to urge Judge Jones to reject the plea deal, saying they believe that the executives should go to prison.

These deaths are horrible and tragic, but it looks as if they resulted by directly ignoring warnings and that there has been no knowledge or intent proven on the part of the people who some would like to see jailed. And therefore, this looks like a sign of a rather less than impartial legal environment.

I can’t help but wonder if regular doctors face the same sort of thing, and if medical costs are rising for everyone because of this.