Does an Employee Have Access to Her PDMP Database Records?

OCTOBER 25, 2017
Joseph L. Fink III, BSPharm, JD
Issue of the Case
Can an employee engaged in a legal tussle with her employer have access to records of her own prescription transactions maintained in the state’s Prescription Drug Monitoring Program (PDMP) database to be used as part of the legal proceedings?

Facts of the Case
A female employee of a public university in a midwestern state filed a lawsuit against the institution claiming sexual harassment by her supervisor and failure of institutional authorities to discipline the supervisor after the complaint was lodged. Further, she alleged that she was the subject of retaliation for reporting the harassment. The lawsuit was filed in federal court based on alleged violations of several federal statutes. As part of the legal action, the employee alleged that she had damages consisting of emotional distress that included anxiety, depression, embarrassment, loss of sleep, and stress.

Part of the pretrial process in a civil suit is an activity known as discovery, during which each side can ask questions of the other under oath through a deposition, can examine physical evidence related to the case, and can review documents relevant to the claim. One request that the employer made of the employee as part of this pretrial discovery process was that she submit records of all prescriptions that she received during a specific period. The attorney for the employer specified that the records were to come from the PDMP database available through the state board of pharmacy.

The employee requested the records covering the relevant time frame from the board of pharmacy and was told that they could not be disclosed to her. Thus, she could not produce them pursuant to the discovery request filed by the attorneys for the employer, and her attorney so informed the representatives of the defendant. The attorneys representing the defendant went to the judge, seeking to have the plaintiff ordered to comply with their request for production of records of telephone calls as well as the prescription records. The phone records were ordered to be produced, but the issue with the prescription records was dealt with separately.

The Ruling
The motion of the employer that the employee be compelled to produce the prescription records requested through their discovery request, ie, information existing in the board of pharmacy’s PDMP database, was denied.

The Court’s Reasoning
The judge began by stating that for the request from one party to the other to produce documents to be consistent with the Federal Rules of Evidence, the rules of court that govern such issues, the “requested information must be both nonprivileged and relevant.” That wording was the basis for the plaintiff’s initial objections to producing the requested information. However, the employee later abandoned that argument because she had a better one.

The plaintiff’s attorney had reported to the court that the prescription records could not be provided to the representatives of the defendant–employer because the plaintiff did not have “possession, custody, or control of the document at issue.” That is the exact wording from a different yet relevant Federal Rule of Evidence about what can be included in a pretrial discovery request for production of documents.

The plaintiff’s submission to the board of pharmacy requesting generation of a report covering medications dispensed to her during a specified time frame led to a response from the board office that state law “prohibits disclosure of those records in civil proceedings.” Knowing how the records in its custody would be used, board officials declined to release them. The letter from the board quoted the relevant state statute that specified that PDMP information:

            …shall be privileged and confidential, shall not be subject to subpoena or discovery in      civil proceedings, and may only be used for investigatory or evidentiary purposes related          to violations of state or federal law…

Thus, the court had 2 bases for denying the defendant–university’s request that production of the prescription dispensing records be produced. First, the information was privileged, ie, it was legally protected from being disclosed in public, and second, the plaintiff–employee did not have possession or even access to the records being sought. Even though the court concluded that the information sought may well have been relevant to the matter at hand to help establish whether the employee had indeed suffered the damages claimed, the position of the board of pharmacy led to her being unable to produce the records being sought.
 
Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA, is a professor of pharmacy law and policy and Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.


SHARE THIS
1