On The Docket
David B. Brushwood, BSPharm, JD
A controlled substance prescription must be issued for a legitimate medical purpose and in the usual course of professional practice. Any order for a controlled substance that does not meet these legal criteria is referred to as a “purported prescription,” and a pharmacist who knowingly honors such a purported prescription has committed a federal offense.
Pharmacists who refuse controlled substance prescriptions out of concern for prescription legitimacy have been sued by prescribers. A recent case from a federal court in Kentucky addresses potential pharmacist liability for prescription refusal.
Background
A board-certified anesthesiologist who specializes in pain management sued a pharmacy for refusing his prescriptions. The plaintiff alleged that his patients were told “we are no longer allowed to fill his prescriptions,” “this doctor is under investigation,” “the doctor is in trouble,” as well as “similar or substantially similar explanations.”
The plaintiff sued for defamation on the basis of the act of refusal itself and on the statements that allegedly were made. The defendant pharmacy moved the court for partial dismissal of the case, arguing that the act of refusal could not constitute defamation, and that the statement “we are no longer allowed to fill his prescriptions” was truthful. Truth is a complete defense to a claim of defamation.
The pharmacy did not request dismissal of the case on the basis of the other allegedly defamatory comments.
Rationale
The court first noted that defamation is defined as “making a false statement about someone to a third person in such a way as to harm the reputation of the person spoken of.” The plaintiff contended that refusal of his prescriptions was defamatory because “the failure to fill his prescriptions necessarily imputed illegal conduct because pharmacists are required to fill prescriptions unless the pharmacist has reason to know of some irregularity with the prescription.”
The court disagreed. “In this case, the pharmacist’s refusal to fill a prescription was not, in itself, ‘language’ or a ‘statement’ of anything at all. To hold otherwise would make pharmacists who do not fill prescriptions for any reason (e.g., illegible handwriting, lack of inventory, or a potentially harmful drug interaction) subject to defamation claims.”
The court also held that the statement “we are no longer allowed to fill his prescriptions” was not defamatory because it was true. Pharmacy staff were not allowed to honor the plaintiff’s prescriptions because of corporate policy. In addition, this statement was protected through a “qualified privilege.” A qualified privilege exists “where the communication is one in which the communicating party has an interest and it is made to notify another party having a corresponding interest.”
The court said that in this case, “the defendant pharmacy had a vested interest in notifying patients whether they would fill [the physician’s] prescriptions, and patients had a common interest in knowing whether their prescriptions would be filled.” A qualified privilege can be defeated only if it is made with bad faith or actual malice, neither of which was alleged in this case.
The court granted the pharmacy’s motion for partial dismissal of the lawsuit. The case will continue on the basis of the additional alleged comments.
Discussion
This case explains how to deal with a situation in which a controlled substance prescription must be declined. The mere act of declining a prescription will likely not lead to pharmacy liability. Statements made at the time a prescription is declined may lead to pharmacy liability.
Using this case as a guide, the best approach would be to make only factually accurate statements that reference pharmacy policy. Statements such as “We cannot honor opioid prescriptions from out of state,” or “We cannot honor a prescription for extended-release opioids with prn directions,” would be relatively safe. Statements such as “This prescription could kill you” or “Your physician is a pill mill” would be relatively unsafe.
The key is to emphasize that the prescription cannot be honored because of policy, not because an impulsive decision has been made to reject this specific prescription.