On The Docket

David B. Brushwood, BSPharm, JD

The rights of patients and the responsibilities of health care professionals are the subject of significant litigation in the area of pregnancy termination and pregnancy prevention. The Court of Appeals of Minnesota recently released a decision reversing a jury verdict denying a patient’s right to recover damages following a pharmacist’s refusal to honor the patient’s emergency contraception prescription.

Background

The patient’s prescription was transmitted to the defendant pharmacy. The patient called the pharmacy, and a pharmacy technician said that the drug was not in stock, but the drug would be ordered immediately so that the prescription could be processed on the following day.

The defendant pharmacist, the only pharmacist on duty, learned about the prescription and called the patient to inform her that he “refuses to dispense any emergency contraception that works by inhibiting the implementation of a fertilized egg because doing so may cause the fertilized egg to ‘die,’ meaning a ‘new life’ will cease to exist.” The pharmacist also told the patient that a non-objecting pharmacist was scheduled to work with him on the following day, but that due to a predicted snowstorm, that pharmacist might not be able to travel to the pharmacy.

The patient had the prescription transferred to another pharmacy located about an hour away, and the prescription was processed for her the next day by that alternate pharmacy.

The patient sued the refusing pharmacist and the pharmacy, relying primarily on the Minnesota Human Rights Act (MHRA), which prohibits “business discrimination,” which it defines in significant part to mean “to intentionally refuse to do business with a person because of a person’s sex unless the alleged refusal or discrimination is because of a legitimate purpose.”

A jury returned a verdict in favor of the defendants and from this verdict the patient appealed.

Rationale

On appeal, the court noted that the defendant pharmacist had followed a policy adopted by the pharmacy that allows pharmacists to refuse emergency contraception prescriptions as long as the prescription is either honored by another of the pharmacy’s pharmacists or is transferred to another pharmacy. The stated purpose of the policy is to ensure that emergency contraception prescriptions are honored.

The court then addressed the pharmacist’s contention that his refusal of the prescription was not sex discrimination. The court disagreed. The MHRA provides that “sex includes, but is not limited to, pregnancy, childbirth, and disabilities related to pregnancy or childbirth.” The court said the pharmacist’s assertion that he was motivated by the possibility that the medication might interfere with a pregnancy, not because the patient was pregnant, was “a distinction without a difference.”

The court ruled that the pharmacist intentionally refused to do business with the patient because of sex, in violation of Minnesota law. The court also ruled that the pharmacy had not refused to do business with her. The court concluded that the patient was entitled to a new trial against the pharmacist on both compensatory and punitive damages related to the business discrimination claim. The jury verdict in favor of the pharmacist was reversed. The jury’s verdict in favor of the pharmacy was affirmed.

Takeaways

This case demonstrates that even if a pharmacist complies with a pharmacy policy allowing the conditional refusal of emergency contraception prescriptions, that refusal may nevertheless be unlawful. Pharmacists who object to such prescriptions should ensure that their objections are consistent with state laws.

The court’s allowance of a new trial based on both compensatory and punitive damages exposes the defendant pharmacist to the possibility of significant economic risk. This economic risk will not extend to the pharmacy because it was dismissed from the case. An award of monetary damages may not be covered by the pharmacist’s insurance.

State laws differ, and pharmacists should check with a local attorney to verify that any objections to dispensing emergency contraception are lawful. ■