Lethal-drug findings expected next month

A state Medical Board investigation into how the state obtained the drugs it used to execute four inmates in eight days could yield findings by early next month, the board’s attorney said.

Kevin O’Dwyer, a lawyer for the regulatory board over statewide medical practice, said the inquiry into how the Department of Correction purchased the drugs — and whether licensed doctors were involved — arose from media coverage of executions and the legal efforts to stop them.

Findings will likely be presented to the medical board when it next meets in June, and the board could decide then whether to request more information or drop the case because it lacks jurisdiction, executive secretary Karen Whatley said.

“Our investigation would certainly continue until June and maybe afterward,” O’Dwyer said.

Pharmaceutical companies, after tailoring new sales restrictions in recent years to prevent prison systems from acquiring their drugs for use in lethal injections, took aim at Arkansas last month in the lead-up to executions carried out with their drugs. One company accused the state of using deception — and furnishing a doctor’s medical license number — in order to complete a sale the company later tried to reverse.

McKesson Surgical Inc., a pharmaceutical supplier, said in a lawsuit that when the state purchased the paralytic drug vecuronium bromide in July, it did not disclose that it would be used as the second part of Arkansas’ three-drug lethal injection process. A Correction Department official said the company was aware of why Arkansas wanted the drug.

Drugmakers Fresenius Kabi USA and West-Ward Pharmaceuticals filed friend-of-thecourt briefs in a federal case that said Arkansas knowingly flouted company controls aimed at preventing their drugs from being used in executions. Neither company filed a formal lawsuit.

Fresenius Kabi makes potassium chloride, which Arkansas uses to stop inmates’ hearts, and West-Ward makes the sedative midazolam.

Arkansas executed Ledell Lee, Jack Jones, Marcel Williams and Kenneth Williams over an eight-day period beginning April 20. The state originally intended to execute eight prisoners over an 11-day span, but court orders blocked half of them.

Gov. Asa Hutchinson, who issues execution warrants, said the compressed schedule was necessary because the state’s supply of midazolam expired Sunday. Arkansas had gone more than a decade without an execution because of legal challenges and difficulty obtaining drugs.

The state Medical Board has the power to subpoena witnesses and obtain records, O’Dwyer said. It can reprimand doctors and strip them of licenses, temporarily or permanently. The board’s authority under the Arkansas Medical Practices Act extends to licensed doctors, so it cannot take action against state agencies like the Department of Correction.

O’Dwyer said he’s not sure whether any subpoenas have been drawn up or delivered.

Dr. Steven Cathey, chairman of the state Medical Board, deferred questions to O’Dwyer.

In the McKesson lawsuit, company salesman Tim Jenkins testified that he arranged the sale of vecuronium bromide to Arkansas at the request of Rory Griffin, a deputy director at the Correction Department. Griffin did not tell Jenkins the drug would be used for executions, Jenkins testified. Griffin testified that he explained its use.

McKesson records presented in court showed the sale had been conducted under the license of Dr. Robert Allen Floss, a family practitioner who is also assistant regional medical director of Correct Care Solutions, the company contracted to provide health care services to the state’s prison system.

Griffin disputed that he invoked Floss’ license to complete the sale, and Correct Care has said neither Floss nor the company had any involvement in buying the drug. The Correction Department often uses Floss’ license for drug purchases that are not related to executions, including those from McKesson, officials said Monday.

“His license is utilized for the purchase of other drugs for the facility,” Correct Care spokesman Jim Cheney said. “We’re looking into how it ended up being used for that particular drug.”

Correct Care is “not permitted to participate in any portion of an execution process,” so the company would not have allowed Floss to use his medical license to obtain the drug, Cheney said.

Calls to phone numbers listed for Floss were not answered Monday.

Jim DePriest, chief legal counsel and assistant director of the Correction Department, said Monday that Griffin didn’t use Floss’ medical license because he didn’t need a license to complete the purchase.

DePriest cited Arkansas’ Method of Execution Act of 2015, which tasks the Correction Department director with “ensuring that the drugs and substances set forth in this section and other necessary supplies for the lethal injection are available for use on the scheduled date of the execution.”