Absence of pharmacist–patient privilege an emerging problem

On the Docket


W
hen an individual is served a subpoena to appear in court, that person generally must appear and answer questions under oath. When a subpoena duces tecum is served, documents specified in the subpoena also must be produced. Exceptions to this general rule are situations in which one person cannot be compelled to testify in court against another person due to a claim of testimonial privilege. 

Many states recognize testimonial privileges, though vast differences exist from state to state in their scope and character. Some of the more common testimonial privileges are spousal, attorney–client, clergy, and physician–patient. A few states recognize a specific pharmacist–patient privilege, and a few other states have extended the physician–patient privilege to pharmacists through courtmade case law. A recent federal court case in West Virginia raises the policy issue of pharmacist–patient privilege.

Background

A physician hired a consulting business to provide him with accounting, management, and tax advisory services. The IRS initiated an audit of the physician’s practice. In a lawsuit against the consulting business, the physician alleged that he had been given incompetent advice that led to financial loss and threats of criminal prosecution for income tax evasion. The consulting business contended that the physician had voluntarily retired from business for various reasons, including “a problem” with hydrocodone cough syrup. The business served a subpoena duces tecum to a local pharmacy requesting production of records for prescriptions filled by the physician.

The physician filed a motion to quash the subpoena, contending that it required the pharmacy to disclose information that was protected by a testimonial privilege. The consulting business opposed the motion, arguing that the only health care privilege in West Virginia is between psychotherapist and patient, and that this privilege has not been extended to pharmacists. The business also pointed out that there is no federal pharmacist–patient privilege.

Rationale

The judge referenced a federal rule of civil procedure “which requires a court, on timely motion, to quash or modify a subpoena that requires disclosure of privileged or other protected matter.” Deferring to state law, as is appropriate in a case of this type, the judge explained that “the State of West Virginia has not codified a pharmacist–patient privilege, nor have West Virginia courts recognized such a privilege.” 

Nevertheless, the judge concluded that the physician’s pharmacy records “are unquestioningly entitled to special consideration when determining whether, and the extent to which, they should be disclosed.” The judge refused to quash the subpoena but limited the scope of records to be produced by the pharmacy, and she granted a protective order to ensure the information would be considered confidential.

Discussion

Not many years ago, pharmacy records were brief, their meaning was ambiguous, and they were difficult to locate. Today, pharmacy records are voluminous, the simple fact that a patient is using a drug can convey significant information about the patient, and computerized pharmacy records are easily accessible. An attorney who is thwarted by the physician–patient privilege may try a workaround by serving a subpoena for the patient’s pharmacy records.

In the absence of a recognized pharmacist–patient privilege, the physician–patient privilege could become meaningless. Moreover, pharmacists could be placed in the uncomfortable position of being required to disclose information that invades the protected relationship between physician and patient. Amendments to state testimonial privilege statutes can address this emerging problem.

Based on: Kohari v Jessie, 2014 U.S.Dist. LEXIS 46033 (S.D.W.V. April 3, 2014).