Refusing a prescription and defaming the prescriber

Refusing a prescription and defaming the prescriber

http://www.pharmacist.com/refusing-prescription-and-defaming-prescriber

The better response may be to defer to company policy and simply say, “We can’t honor this prescription based on company policy.”  Does this suggest that the BOP’s -individually and collectively – are turning a “blind eye” to corporate policies that may be over-ruling the individual Pharmacist’s professional discretion , as provided under the practice act, and to fill/not fill a Rx. Does this suggest that the stacking of BOP’s with non-practicing corporate Pharmacists is causing the BOP’s to not focus on their primary charge to protect the public’s health and safety and allow corporate policies to the “prevailing decision maker”.

There are always trends in litigation against pharmacists. Most of these litigation trends reflect contemporary challenges in pharmacy practice, such as patient education or standards for sterile compounding. The most recent trend stems from the legal requirement that pharmacists refuse opioid medications when questions arise about the legitimacy of a prescription. 


Three legal cases reported in early October describe the alleged circumstances leading to defamation lawsuits filed by prescribers against a pharmacy. These three unrelated lawsuits from Indiana, Pennsylvania, and Virginia all alleged that pharmacists who refused prescriptions also made defamatory statements to patients about the prescriber. 


In each of the lawsuits, the pharmacy argued that the case should be dismissed based on a “qualified privilege” of the pharmacist to discuss drug therapy with a patient. In each lawsuit, the court refused to dismiss the case. This does not mean the pharmacies will ultimately lose. It does mean that criticizing a prescriber when refusing an opioid prescription may expose a pharmacist and/or pharmacy to liability for defamation.


Background


In the Virginia case, pharmacists who refused a physician’s opioid prescriptions allegedly made critical statements about the physician, such as “He is bad news,” “He writes too much pain pills and it’s against the law,” and “Your doctor won’t be in business much longer.”


In the Indiana case, the pharmacists refusing a physician’s opioid prescriptions allegedly said that the prescriber “operates a pill mill,” “is a murderer,” and “has been or soon will be arrested.”


In the Pennsylvania case, the pharmacists are alleged to have said that the prescriber “is an irresponsible doctor who just writes scripts and probably does very little treating,” “is being investigated by the DEA [U.S. Drug Enforcement Administration],” and that “nobody in the area fills his prescriptions.”


Rationale


In all three cases, the defendant pharmacies filed a motion to dismiss the cases based on the “pharmacist–patient qualified privilege.” A qualified privilege recognizes that pharmacists have a primary duty to patients and that this duty requires communicating essential information about drug therapy to patients. At times, essential information may reflect negatively on the prescriber. A qualified privilege negates the element of malice that is essential to a defamation lawsuit. To qualify for the privilege, statements made must be (1) in good faith, (2) intended to uphold a legitimate interest, (3) limited in scope and purpose, (4) made on a proper occasion, and (5) made in a proper manner to appropriate parties.


In all three cases, the courts ruled that the facts had not been sufficiently developed to determine whether dismissal was appropriate on the basis of the qualified privilege. All three cases will continue to be litigated.


Discussion


The refusal of an opioid prescription is, in itself, a significant statement about the prescriber and the concerns a pharmacist has about the prescription. Patients will often want to know why a prescription is refused, although they likely can infer the reason from the circumstances.


As the cases reviewed here suggest, it is potentially defamatory for pharmacists to make critical statements about prescribers when patients ask why an opioid prescription has been refused. Any temptation to criticize the prescriber should be resisted under these circumstances. The better response may be to defer to company policy and simply say, “We can’t honor this prescription based on company policy.” This incomplete explanation could be frustrating for both the patient and the pharmacist, but it is necessary given the possibility that patients will misconstrue even the most benign statements made about the prescriber. 



Based on: Mimms v CVS Pharmacy, Inc., 2015 U.S.Dist LEXIS (S.D.Ind. October 1, 2015), Goulmaine v CVS Pharmacy, Inc., 2015 U.S.Dist LEXIS 138359 (E.D.Vir. October 9, 2015), Yarus v Walgreen Co., 2015 U.S.Dist LEXIS 140562 (E.D.Pa. October 9, 2015).

 

2 Responses

  1. The patient may be upset about not getting medications that are needed. Even the worst prescribing doctor is going to be right part of the time. Pharmacists SHOULD behave with professionalism and dignity when dealing with all patients on all problems.

  2. Oh dear God please let these cases get litigated all the way through and a victory won. I highly doubt that these doctors are running a pill mill in this type of environment. Just because a doctor writes a prescription for opiates does not make him a bad doctor. Did the pharmacist even call the doctor to find out the reason for the prescription? In my mind, I don’t believe a pharmacist should even do that unless the amount and the strength are so high that it sticks out like a red flag.

    And what tickles me the most is the patient that has gone to the same chain pharmacy for over a decade with the same doctor and the same dosage and all of the sudden this doctor is a bad doctor who will soon be arrested because he writes too many pain pill prescriptions. Those big chain drugstores were more than happy to take the patient money for those 10 years. What gives?

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