Should a pharmacist-in-charge be held liable for a technician’s theft? Can a pharmacist who is afraid of needles be fired for not providing immunizations?

These were some of the legal questions posed during a session on pharmacy case law at the American Pharmacists Association (APhA) 2016 Annual Meeting and Exposition.

Roger Morris, RPh, JD, of Quarles & Brady LLP, and William J. Stilling, BS, Pharm, MS, JD, of Parsons Behle & Latimer, provided an overview of the kind of legal cases pharmacists have been involved in both as the plaintiffs and the defendants over the past year or so.

Here are 5 recent legal cases pharmacists should know.

1. Sternberg v. California State Board of Pharmacy

After a technician was found to have stolen controlled substances, the California Board of Pharmacy sought to hold the pharmacist-in-charge liable, even though the pharmacist was unaware of the theft.

When Stilling mentioned how much the tech had stolen—at least 216,630 tablets of Norco—APhA attendees erupted in chatter.

“With your reaction, if you were on the jury, you would’ve already decided,” Stilling said.

Over the course of a few years, the tech would order 6 bottles of 500 tablets for delivery and then check in the drugs away from the pharmacist on duty, stash the bottles in a store room, and secretly move 3 bottles at a time to her car.

The board held the pharmacist liable and revoked his license, a district court affirmed the board’s decision, and the pharmacist appealed. However, the court affirmed the board’s decision that the pharmacist was responsible for the tech’s theft and for violations of laws that govern record keeping and security in the pharmacy, despite the fact that the pharmacist was unaware of the theft.

The court argued that the pharmacist could have restricted access to who orders controlled substances in order to prevent the thefts. He also could have randomly checked containers being checked in, or he could have checked the invoices.

2. Burton v. Walgreens

This case involved “spoliation of evidence,” meaning a party involved either intentionally or unintentionally destroyed evidence. In this case, a patient sought sanctions against a pharmacy for willful spoliation of evidence after Walgreens threw out a bottle and pills that were returned after a misfill.

“So, pharmacists, keep that in mind: if there is a misfill, you probably don’t want to destroy the evidence of that misfill,” Stilling said.

The 2 issues to consider in this case were whether Walgreens had a duty to preserve evidence and whether the misfill served as a notice of potential litigation.

A Walgreens customer was supposed to receive Diovan, but the pharmacist misfilled the prescription with a mix of Diovan and lithium. The patient’s wife returned the pills to the pharmacy after noticing that the pills were shaped differently than usual.

Meanwhile, the patient experienced numbness and weakness in his hand and was hospitalized. He was diagnosed with carpal tunnel syndrome and polyneuropathy due to improper ingestion of lithium. 

The patient sued Walgreens for alleged negligence and asked Walgreens for the pills and bottle to confirm that the pills contained lithium. However, Walgreens noted that they were thrown away, and the plaintiff filed a motion for spoliation sanctions.

The court determined that Walgreens did not have a duty to preserve the evidence because the evidence was destroyed in accordance with internal policies, and it was not willfully destroyed. In addition, the court found Walgreens was on notice of potential litigation because of the error, which should have triggered the staff to preserve evidence.

However, since Walgreens admitted to misfilling the prescription, the plaintiff “faced no prejudice from spoliation.”

3. Stormans Inc. v. Wiesman

A pharmacy and pharmacists brought action against Washington State’s Pharmacy Quality Assurance Commission because of rules requiring a pharmacy to dispense certain drugs.

The owners of Stormans Inc did not want to stock emergency contraception like Plan B because of religious reasons. When patients came in for these products, the staff would direct them to neighboring pharmacies.

After several courts went back and forth on whether this was allowed, a federal appeals court determined in 2015 that the state’s pharmacists could not use religion as a reason to not sell emergency contraception.

“Speed is particularly important considering the time-sensitive nature of emergency contraception and of many other medications,” wrote Judge Susan Graber who authored the panel’s opinion. “The time taken to travel to another pharmacy, especially in rural areas where pharmacies are sparse, may reduce the efficacy of those drugs.”

The pharmacies involved in this case are still fighting this ruling. A law firm called Alliance Defending Freedom has filed a petition for a writ of certiorari in order to have the Supreme Court review the federal appeals court’s decision.

With more news to come on this case, Morris said he expected to report on this case at next year’s APhA meeting.

4. Amarin Pharma, Inc. v. FDA

When Amarin started promoting its drug Vascepa for an off-label use, the FDA deemed the product misbranded. However, Amarin argued that because its promotion was truthful and not misleading, the First Amendment protected the manufacturer’s ability to promote this use.

Vascepa was approved in 2012 to treat adults with severe hypertriglyceridemia (triglyceride levels above 500 mg/dL of blood), but Amarin also wanted to promote the drug’s use for patients with persistently high triglyceride levels (between 200 and 499 mg/dL of blood). However, the FDA did not approve this use because it wanted more information on whether lowering triglycerides actually helped patients avoid heart disease or myocardial infarction.

The court sided with Amarin, saying that the First Amendment protected the manufacturer and that truthful speech cannot be used to form the basis of a misbranding claim.

Back in August 2015, Joel Kurtzberg, a lawyer for Amarin, told The New York Times that he believed this was perhaps the first decision that “clearly and unequivocally rebuffs the government’s view that off-label promotion can be prosecuted, even if truthful and nonmisleading.”

5. Stevens v. Rite Aid Corp.

This case involved a pharmacist who sued Rite Aid after the company fired him because he refused to provide immunizations due to his fear of needles. The pharmacist argued that Rite Aid violated the Americans with Disabilities Act and New York State Human Rights Law.

When Rite Aid purchased the pharmacy where pharmacist Christopher Stevens worked, it was announced that all pharmacists had to undergo immunization training. Stevens showed Rite Aid letters from his physician that said he had trypanophobia, a fear of needles, and he argued it would be unsafe for him to provide immunizations.

Stevens was fired after he refused to go to training, which led him to file a complaint with the Equal Employment Opportunity Commission. Rite Aid maintained that a fear of needles didn’t count as a disability, so his firing was for a legitimate reason.

However, a jury awarded Stevens with more than $485,000 in back-pay damages, more than $1.2 million in front-pay damages, and $900,000 in non-pecuniary damages.

Rite Aid then sought to overturn the jury verdict or have a new trial.

The court determined that trypanophobia was a neurological impairment and also found that providing immunizations was not in the essential job functions of a Rite Aid district manager. The court decided to keep the back pay and front pay, but it reduced the nonpecuniary damages from $900,000 to $125,000, so Stevens received $1.8 million in total.