Refusing a prescription and defaming the prescriber

On the Docket

There are always trends in litigation against pharmacists. Most of these litigation trends reflect contemporary challenges in pharmacy practice, such as patient education or standards for sterile compounding. The most recent trend stems from the legal requirement that pharmacists refuse opioid medications when questions arise about the legitimacy of a prescription. 


Three legal cases reported in early October describe the alleged circumstances leading to defamation lawsuits filed by prescribers against a pharmacy. These three unrelated lawsuits from Indiana, Pennsylvania, and Virginia all alleged that pharmacists who refused prescriptions also made defamatory statements to patients about the prescriber. 


In each of the lawsuits, the pharmacy argued that the case should be dismissed based on a “qualified privilege” of the pharmacist to discuss drug therapy with a patient. In each lawsuit, the court refused to dismiss the case. This does not mean the pharmacies will ultimately lose. It does mean that criticizing a prescriber when refusing an opioid prescription may expose a pharmacist and/or pharmacy to liability for defamation.


Background


In the Virginia case, pharmacists who refused a physician’s opioid prescriptions allegedly made critical statements about the physician, such as “He is bad news,” “He writes too much pain pills and it’s against the law,” and “Your doctor won’t be in business much longer.”


In the Indiana case, the pharmacists refusing a physician’s opioid prescriptions allegedly said that the prescriber “operates a pill mill,” “is a murderer,” and “has been or soon will be arrested.”


In the Pennsylvania case, the pharmacists are alleged to have said that the prescriber “is an irresponsible doctor who just writes scripts and probably does very little treating,” “is being investigated by the DEA [U.S. Drug Enforcement Administration],” and that “nobody in the area fills his prescriptions.”


Rationale


In all three cases, the defendant pharmacies filed a motion to dismiss the cases based on the “pharmacist–patient qualified privilege.” A qualified privilege recognizes that pharmacists have a primary duty to patients and that this duty requires communicating essential information about drug therapy to patients. At times, essential information may reflect negatively on the prescriber. A qualified privilege negates the element of malice that is essential to a defamation lawsuit. To qualify for the privilege, statements made must be (1) in good faith, (2) intended to uphold a legitimate interest, (3) limited in scope and purpose, (4) made on a proper occasion, and (5) made in a proper manner to appropriate parties.


In all three cases, the courts ruled that the facts had not been sufficiently developed to determine whether dismissal was appropriate on the basis of the qualified privilege. All three cases will continue to be litigated.


Discussion


The refusal of an opioid prescription is, in itself, a significant statement about the prescriber and the concerns a pharmacist has about the prescription. Patients will often want to know why a prescription is refused, although they likely can infer the reason from the circumstances.


As the cases reviewed here suggest, it is potentially defamatory for pharmacists to make critical statements about prescribers when patients ask why an opioid prescription has been refused. Any temptation to criticize the prescriber should be resisted under these circumstances. The better response may be to defer to company policy and simply say, “We can’t honor this prescription based on company policy.” This incomplete explanation could be frustrating for both the patient and the pharmacist, but it is necessary given the possibility that patients will misconstrue even the most benign statements made about the prescriber. 



Based on: Mimms v CVS Pharmacy, Inc., 2015 U.S.Dist LEXIS (S.D.Ind. October 1, 2015), Goulmaine v CVS Pharmacy, Inc., 2015 U.S.Dist LEXIS 138359 (E.D.Vir. October 9, 2015), Yarus v Walgreen Co., 2015 U.S.Dist LEXIS 140562 (E.D.Pa. October 9, 2015).