On The Docket
David B. Brushwood, BSPharm, JD
There is an adage that says “sticks and stones may break my bones, but words will never harm me.” It isn’t true. Words can hurt, and the law provides remedies when spoken words cause harm. Two recent legal cases demonstrate the potential consequences of harmful words spoken by a pharmacist.
License revocation
In a recent administrative discipline case, a pharmacist appealed the revocation of his license by the state board of pharmacy.
The basis of the revocation was “unprofessional conduct” by the pharmacist who allegedly “used insulting language” to describe patients.
In the judicial opinion that upheld the license revocation, the precise words spoken about the patient by the pharmacist were not disclosed.
The pharmacist’s legal argument was that “because no rule of the board specifically proscribes his conduct nor defines ‘standards of practice’ against which his conduct is being measured, he cannot be disciplined for unprofessional conduct.”
The court rejected this argument, noting that “a code of professional conduct need not be so detailed as to spell out every contingency.”
The court concluded that “the board could rely on the evidence in the record and did not need to promulgate a rule that explicitly prohibited pharmacists from using derogatory language to talk about patients in order to conclude that conduct was unprofessional.”
The (now former) pharmacist’s appeal failed.
Civil liability
In a separate case that also alleged offensive statements by a pharmacist, a patient sued a pharmacy for disability discrimination and intentional infliction of emotional distress.
The patient explained that she had many allergies and that she wanted to prevent an allergic reaction to the inactive ingredients of her medications. She allegedly “asked both the pharmacist and a pharmacy technician to wipe down the medicine dispenser” before counting out her medication.
According to the patient, the pharmacist “dismissed the patient’s concerns, grew ‘belligerent,’ and declined to honor her request.” The patient said that the “pharmacist rudely replied that he knew what he was doing,” and the technician added, “we know how to do our job.”
Approximately one month later, the patient asked her dentist to verify with the pharmacy that clindamycin did not contain milk or corn prior to prescribing that drug for her.
The dentist telephoned the pharmacy, and the same pharmacist is alleged to have “flippantly replied, ‘good luck finding an antibiotic without corn or dairy.’”
The defendant pharmacy moved the court for dismissal of the case, claiming that none of the patient’s claims could support liability of the pharmacy.
As to the disability discrimination claim, the court noted that “by refusing to answer basic questions about the contents of her prescriptions, [the patient] plausibly alleges that [the pharmacy] denied her the benefit of its personalized consulting services on matters of critical importance to her health and safety.”
As to the emotional distress claim, the court said, “forced to choose between an inconsiderate and potentially dangerous in-network pharmacy and the prospects of financial strain occasioned by out-of-network costs for medications—a modern day Scylla and Charybdis—[the patient] avers that she went without.”
The court concluded, “the pharmacy’s employees are medical professionals and [the patient] adequately alleges that they were acutely aware of her health needs and refused to accommodate her.” The court further concluded that these actions, as alleged, “were extreme and outrageous, and [the pharmacist] should have known they would cause [the patient] severe emotional distress.”
Dismissal of the case was denied.
Takeaways
Some pharmacy patients present challenges that require significant effort and forbearance. In caring for patients, it is important to avoid incautious comments. Everything necessary to promote good pharmaceutical outcomes must be said. Anything that is unrelated to the promotion of good pharmaceutical outcomes must remain unsaid. There can be severe legal consequences for pharmacists who are verbally disrespectful of patients. ■