Lawsuit for Slander Against Pharmacists Based on Comments About a Physician

JANUARY 09, 2019
Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA,
ISSUE OF THE CASE
A physician filed a lawsuit against a national pharmacy chain, claiming that some comments made by pharmacists practicing there to his patients had been defamatory. The pharmacy chain made a motion with the trial court judge to grant summary judgment in its favor and to ignore the physician’s response to the motion because it was filed too late.

FACTS OF THE CASE
This matter was originally filed in state court but removed to federal court because of diversity jurisdiction; ie, the parties were from different states. The plaintiff ’s physician claimed that various employees of the pharmacy chain made defamatory and false statements about his medical ethics and reputation. He objected to statements that called into question his qualifications as a physician.

The pharmacy chain asked the judge to dismiss the action because the physician’s attorney failed to file a response to the lawsuit by the established deadline. The court did not grant that motion and proceeded to address the merits of the defamation claim. Applying the law of the Southern state where the matter had arisen, the court pointed to 4 elements that must be established to prove defamation:
  1. A false and defamatory statement concerning another.
  2. Existence of special harm caused by the statements.
  3. Fault amounting at least to negligence on the part of the speaker.
  4. An unprivileged communication to a third party.

It also added a fifth criterion: malice, saying that “false statements that someone has committed a dishonest or illegal act are defamatory” and come with a presumption of malice. However, that presumption does not exist if the speaker has what the law calls a qualified privilege.'

For a statement to be privileged (think protected), it must meet 4 criteria:
  1. It must be made at a proper occasion.
  2. It must be made in good faith.
  3. It must be made to uphold some interest of the speaker.
  4. It must be spoken in a proper manner.

THE RULING
The motion for summary judgment made by the pharmacy chain was granted. The judge ruled that the statements made by the pharmacy staff members were indeed protected by a qualified privilege. She could find no evidence of express malice, so the presumption of the statements’ being protected by that privilege prevailed.

THE COURT’S REASONING
The court focused on the fact that the comments in question were made when the patients, recipients of the perceived negative comments, were at the pharmacy presenting a prescription to be dispensed. The judge concluded that the comments were made to inform the patients about the source of the prescriptions, the physician who had issued them. The judge wrote, “The pharmacists acted in good faith and were upholding a legitimate interest since the statements were made while the pharmacists were filling prescriptions and giving general advice as they have a duty to do. This court has previously ruled that pharmacists have a duty to provide competent advice to customers and this duty is not satisfied by a ‘robotic compliance with the instructions of the prescribing physician.’ Since the pharmacist has a duty beyond merely following the doctor’s instructions robotically, these pharmacists exercised their due diligence by informing the customers, as necessary, of any relevant information regarding the prescribing physician.”

Continuing with the checklist, the judge found that the pharmacist’s statements were made in the proper location and manner.

The patients were seeking treatments, and the comments were limited in scope to the specific prescriptions being dispensed and not overly generalized.

Thus, the judge ruled that the comments of the pharmacists were privileged. Unless the plaintiff’s physician could prove deliberate malice, which he could not, his suit could not go forward. The judge granted summary judgment, meaning that no issues remained to be addressed at trial and that the matter should be terminally disposed of at that point.
 
Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.


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