When Complying With a Law Enforcement Request Causes Problems

SEPTEMBER 27, 2018
Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA
A pharmacist receives a fraudulent prescription for a controlled substance. A police officer asks the pharmacist to dispense the drug, so the offender can be arrested. Does honoring the prescription justify firing the pharmacist? Can the pharmacist recover damages under the state’s whistle-blower law?

The pharmacist, who had been working for a national pharmacy chain for 26 years, received a suspicious prescription for alprazolam (Xanax). She called the prescriber’s office to see if the request for dispensing was legitimate, and the office manager told her it was bogus. The office manager called the police and spoke with a member of the drug enforcement unit, who said he could not take action until the customer received the medication. The office manager explained this to the pharmacist and authorized her to dispense the medication. The police officer said he would arrest the perpetrator after the prescription had been picked up.

The prescription was prepared. After picking up the prescription from a technician at the counter, the customer left the drugstore and was arrested.

The company’s management investigated the pharmacist’s conduct during the sting operation. Management concluded that she should be fired for violating a company policy that “prohibits pharmacists from complying with law enforcement requests to dispense medicine pursuant to fraudulent prescriptions during a sting operation.”

The pharmacist’s supervisor reprimanded her for assisting with the police operation. She said that in her view it is unlawful to prohibit pharmacists from cooperating with a police sting operation. The supervisor fired her.

The pharmacist sued in state court, alleging that the pharmacy chain had retaliated against her for opposing its unlawful policy. Her state’s whistle-blower act makes it illegal to fire an employee who reports an employer’s illegal or unethical acts. At her pretrial deposition, the pharmacist said she participated for 2 reasons. First, she wanted to help the police catch the suspected forger. Second, she feared losing her pharmacy license for failing to comply with the police officer’s directions.

Because the parties are based in different states, the case was transferred to federal court, where the employer filed a motion for summary judgment.

The judge granted the defendant’s motion for a summary judgment, which stipulates that there is no genuine dispute to any material fact needing the attention of a trial by jury.

The court said that the employer’s policy must violate the law for the pharmacist to be protected under the state’s whistle-blower law. Having a suspicion that it violates the law or alleging that it is unlawful will not suffice to support a whistle-blower claim. The court concluded that the company’s policy does not violate the law. It quoted the basis for the policy: “Knowingly dispensing a forged or altered prescription is illegal.” The court was sympathetic with the pharmacist but concluded that she was not engaged in protected activity. The pharmacist had identified a provision in state law that makes it a misdemeanor to “neglect or refuse to assist” a law enforcement officer in a criminal case. The court concluded that the pharmacist and her lawyer were misreading and misapplying that law. 
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.