On the Docket
David B. Brushwood, BSPharm, JD
A pharmacy is not obligated to process every legal prescription that is transmitted to the pharmacy. A federal judge in Oklahoma recognized this principle in a lawsuit that alleged liability of a pharmacy for harm caused to a patient due to the failure by the pharmacy to honor a 12-year-old girl’s prescription for leuprolide acetate injection.
The patient was diagnosed with vaginal agenesis. Her parents opted to use the drug to suppress the patient’s menstruation until she was old enough to decide for herself between two surgical options. The physician transmitted a prescription to the specialty pharmacy from which the drug could be obtained.
Due to a series of miscommunications involving prior authorization, the prescription was not processed for 40 days. There was disagreement about who contacted whom and when during this 40-day period.
During the 40-day period without the drug, the patient was admitted to the hospital twice with severe abdominal pain, and she underwent surgery to remove her appendix.
The parents sued the pharmacy for failure to deliver the drug “in a timely manner,” alleging that dispensing the medication would have made the hospitalizations and appendectomy unnecessary. The pharmacy moved for dismissal of the case, contending that they had no duty to dispense the medication.
Rationale
The judge reviewed Oklahoma pharmacy laws and noted that “dispensing medication is something that a pharmacist may do, rather than something she must do.” The judge concluded that “the creation of a duty to fill a prescription would be flatly inconsistent with the regulation recognizing that pharmacists have, and always have had, an unrestricted right to refuse to fill a prescription.”
The judge justified this conclusion by explaining that the defendant pharmacy could not initiate the prior authorization process itself. Only the physician could do that. And only the physician had the information necessary to obtain the required prior authorization. The judge reasoned that “the duty to obtain payment authorization for the pharmacy to fill the prescription should fall on the prescribing physician capable of obtaining and transmitting the authorization, not on the pharmacy that lacks the capability.”
The judge explained that once the insurance company authorized the prescription, “only the physician and the patient know whether they still need medication and, if so, how urgently it is needed.” Even complicated medical issues can resolve with time, and “a physician may change a patient’s course of therapy without notifying a pharmacy.”
The judge noted two circumstances in which a pharmacy may have “a duty to advise a patient of a decision not to fill a prescription.” The first of these is when a pharmacy “promises to fill a prescription” but later determines that the promise cannot be kept. The second is when a pharmacy “represents that it will fill a prescription upon receipt of certain information” but “closes its file even after receiving the information.” Neither of these facts existed in the present lawsuit.
The judge explained that the pharmacy had advised the parents and the physician “that it needed prior authorization to process the prescription” and that the pharmacy “closed its file when it did not receive that authorization.” The judge ruled that “At that point, [the pharmacy’s] duties were extinguished.” The pharmacy’s motion for dismissal was granted.
Takeaways
Prior authorization and other barriers to medication acquisition by patients can be annoying and are potentially harmful when medication is denied. Nevertheless, these programs are a reality of contemporary medication use. They cannot be ignored, and they cannot be gamed.
As this case illustrates, when a prescriber and patient are informed that prior authorization is required before a prescription can be processed, the pharmacy has no further legal responsibility until the authorization has been provided. Unless, according to the judge, a specific promise has been made to the patient, and then the promise must be fulfilled. ■