/publications/issue/2006/2006-07/2006-07-5714

Dealing with a Suspected Forgery Goes off Track

Author: Dealing with a Suspected Forgery Goes off Track

Issue of the Case

This case from a southeastern state presented the issue of whether probable cause to make an arrest existed in a factual situation arising from a prescription issued by an emergency department physician bearing a notation that refills were authorized. The roles of the pharmacists in the development of the case bear particular note.

Facts of the Case

A male patient visited an emergency department physician, receiving a prescription for a common narcotic-containing medication. Reporting to the prescriber that he was about to leave on vacation, the patient requested that a refill be authorized in case he needed the additional supply. The physician indicated the authorization of one refill on the face of the prescription but neglected to note that additional fact in the patient's chart. Such a turn of events can reasonably occur in a busy emergency department situation.

The patient's wife presented the prescription at a pharmacy in the morning, where the pharmacist on duty dispensed the medication. When a different pharmacist on the evening shift reviewed the prescriptions dispensed that day, she noted that the prescription bore a notation of one authorized refill, something rarely done by emergency room physicians. She also thought that a different pen had been used to make the refill authorization, and that the handwriting on the refill authorization looked inconsistent with that used for the body of the prescription.

The evening pharmacist then called the emergency department and asked that someone pull the charted documentation of the patient's visit. A nurse who knew nothing about the patient's situation retrieved the written record and noted that no notation about an authorized refill appeared in the chart. Hearing that, the evening pharmacist alerted the local police to the possible existence of an incident involving prescription fraud to obtain a controlled substance. The police officer went to the pharmacy, examined the prescription, and, without any further investigation, went to the patient's home and arrested him.

After everything got sorted out to establish that there indeed had been no prescription fraud, the patient and his wife sued the city, the employer of the police officer, for false arrest. Following a jury trial on that claim, the verdict and judgment were awarded to the plaintiffs in the amount of $45,000, with 90% of that liability being directed at the city government. The city appealed that decision, claiming that the arrest was legitimate because it was based on sufficient probable cause.

The Court's Ruling

The appellate court ruled that the police officer had in fact not conducted a reasonable investigation. Because of that, the officer did not have probable cause to arrest the patient, resulting in the contested arrest being viewed as a "false arrest" by the court.

The Court's Reasoning

Specifically, the court found that the officer's actions came up short in a number of ways—(1) he did not contact the prescriber at the emergency department to verify the prescription, (2) he did not speak with the morning pharmacist who had actually dispensed the prescription to find out who had actually presented the prescription, and (3) he did not talk to a nurse at the emergency department who had actually been involved in treating the patient. Consequently, the award of damages against the city in favor of the plaintiffs was confirmed on appeal.

This author is personally familiar with a very similar case in a southwestern state, where failure to diligently investigate a suspected altered prescription form authorizing the dispensing of a controlled substance emanating from an emergency department physician led to a very substantial out-of- court settlement. In that case, the emergency department physician decided just before the patient departed to increase the quantity of medication prescribed, picking up a different pen with a slightly different ink color to alter the quantity. The pharmacist who received the prescription from the patient's daughter for dispensing called the emergency department, where someone looked in the chart and saw a notation about the original quantity, not the increased amount, which the prescriber had neglected to note. The elderly male patient was detained for aggressive questioning overnight by the local police, and it was not discovered until "booking" time the next morning that he could neither read nor write. He was incapable of having made the change alleged. Leveling allegations of prescription fraud that bring law enforcement officials into the picture is a very serious matter, and extremely thorough investigation with no supposition must be the rule of the day.

Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.