Issue of the Case
When the employees of a chain community pharmacy refuse to honor prescriptions issued by a local physician, will the lawsuit for defamation filed by that practitioner succeed?

Facts of the Case
A physician, board certified in anesthesiology, was operating a pain management practice in a southern state. He was alerted by patients that staff members at a particular pharmacy chain were refusing to honor his prescriptions for opiate products.

The physician alleged that those patients who presented prescriptions from him for dispensing were told things such as, “This doctor is under investigation” or “We are no longer allowed to fill his prescriptions.”

The practitioner filed a lawsuit in state court against the pharmacy chain advancing 3 legal claims for recovery of monetary damages.

The first claim was that “actions and statements of the defendant pharmacy chain were published to third parties and were defamatory per se,” meaning automatically. The second count alleged that “the conduct of the defendant invaded the good name and privacy of the plaintiff and cast him in a false light in the community.” The third was that “the defendant published the defamatory information regarding the plaintiff physician with reckless disregard of the probability that doing so would cause emotional distress to the plaintiff.”

All 3 legal claims asserted were based on 3 allegations: the defendant pharmacy’s refusal to honor the prescriptions and dispense the medication, a statement by an employee that the pharmacy “was not allowed to fill plaintiff’s prescriptions,” and a statement by a staff member that the physician was “under investigation,” or some similar or substantively similar explanation.

The defendant pharmacy chain made a motion with the trial court judge for partial summary judgment on the first 2 allegations: the chain’s staff members’ refusal to honor prescriptions from the plaintiff and “any communication of that refusal to patients.”

Referring to the 2 collectively as “plaintiff’s refusal defamation claim,” the attorneys for the chain asserted that the chain’s “refusal to fill prescriptions written by the prescriber is not actionable” and “any communication of that refusal to patients is not defamatory.”

The Ruling
The trial court judge granted the defendant pharmacy chain’s motion for partial summary judgment.

The Court’s Reasoning
The judge first emphasized that a party seeking summary judgment, or a judgment before it goes to a jury, must “demonstrate there is no genuine dispute as to any material fact.” He clarified that “an issue of material fact is genuine if a rational fact-finder could find in favor of either party on the issue.” To decide on such a motion, the judge is to “view the evidence in a light most favorable to the non-moving party.”

The judge concluded that the refusal to honor the prescriptions for dispensing was not defamatory because “the action of not filling prescriptions does not meet the prima facie elements of defamation.”

Turning to a state supreme court ruling in an earlier case, the judge adopted the definition of defamation as “making a false statement about someone to a third person in such a way as to harm the reputation of the person spoken of.” He continued by stating that “defamatory language is broadly construed as language that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” The judge pointed out that “the action of not filling a prescription is not defamatory language.”

The plaintiff was unable to point to any case in the state as precedent to indicate that “an action, like the refusal to fill a prescription, can form the basis of a defamation claim.”

The judge then turned to a discussion of the argument of the plaintiff physician’s attorneys that “failure to fill his patient’s prescription necessarily imputed illegal conduct, because pharmacists are required to fill prescriptions unless the pharmacist has a reason to know of some irregularity with the prescription.” The judge ruled that this was a “misunderstanding” of the law of the state. Pharmacy practice law in this jurisdiction does not create “an affirmative duty to fill prescriptions.” The judge concluded that “no rational finder of fact could find that by declining to fill a prescription, the defendant’s employees communicated to patients that the practitioner was a person involved in criminal activity.”
 
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.