Liability for Refusal of Controlled Prescriptions from a Prescriber

Pharmacy Times, May 2015 Skin & Eye Health, Volume 81, Issue 5

When the DEA requests that several pharmacies send a letter to a prescriber indicating that they will no longer honor prescriptions from his office for certain controlled substances, may the physician initiate a lawsuit against one of the pharmacies alleging violation of his property rights without due process of law?

ISSUE OF THE CASE

When the Drug Enforcement Administration (DEA) requests that several pharmacies send a letter to a prescriber indicating that they will no longer honor prescriptions from his office for certain controlled substances, may the physician initiate a lawsuit against one of the pharmacies alleging violation of his property rights without due process of law?

FACTS OF THE CASE

The prescribing patterns of the physician in question had come to the attention of the DEA in an unspecified manner. Agency representatives then contacted local pharmacies and an area wholesaler, ordering them not to honor his prescriptions and threatening that if they continued to dispense pursuant to requests from the prescriber, the DEA would revoke their registrations to distribute controlled substances. That threat of action was followed by a DEA agent asking a national pharmacy chain with an outlet in the area to send a letter to the physician clearly stating that prescriptions from his office for certain controlled substances would no longer be honored at their pharmacies. Owners or managers of other pharmacies in the service area also took similar action.

The physician objected to what he perceived to be an administrative action by the DEA to suspend his DEA registration without providing him notice of the allegations against him or an opportunity to be heard on the matter. He alleged that by doing so, the DEA and the pharmacies violated his due process rights and interfered with his ability to “effectively practice medicine.” He pointed out that those rights were not only guaranteed by the Fifth Amendment, but also by the wording of the Controlled Substances Act.

The physician filed a complaint in US District Court to launch a suit against the DEA, the pharmacy chain, and the local wholesaler. The alleged wrongdoing was a violation of his statutory and constitutional rights. The pharmacy chain made a motion to dismiss the claim with regard to the actions it had taken. Attorneys for both the pharmacy chain and the prescriber filed briefs with the court to outline their positions.

THE COURT’S RULING AND REASONING

The court granted the motion of the pharmacy chain to dismiss the claim. The court focused first on the physician’s allegation that the pharmacy chain had “carried out the policies of the DEA by imposing restrictions on the ability of the prescriber, and his patients, to fill prescriptions written by him.” He argued that the pharmacy chain had deprived him of the “property interest” he had in his DEA registration and “in his ability to maintain his medical practice,” and that this deprivation had been done without due process of law in violation of the Fifth Amendment.

The court found the argument of the pharmacy chain to be more applicable. Citing an earlier decision by the US Supreme Court, the pharmacy chain argued that the precedent set in that prior case indicated that a civil action could be maintained to recover money damages from federal officials, acting under color of federal law, for violating a person’s constitutional rights. The ruling in that case, however, had been limited to actions of federal officials and did not extend to include the acts of private, nongovernmental parties. The attorneys for the chain also pointed to case decisions by the US Court of Appeals that had jurisdiction over the Mid-Atlantic state where this case arose. Those prior court rulings, binding as precedent for the US District Court deciding the present matter, indicated that a claim for money damages for violating a person’s constitutional rights cannot be maintained against a private corporation or its employees. Consequently, the court ruled that this action filed to recover money damages from the pharmacy chain could not be maintained.

The physician also argued that the pharmacy had acted “in concert” with the DEA to deprive him of his constitutional rights. His argument alleged that “federal agents acted against the plaintiff by enlisting the private entity as an agent.” The court noted that the pharmacy’s only act was “to comply with a request from the DEA to stop filling prescriptions” written by the physician or face suspension of its DEA registration. The court concluded that the “single act of complying with the DEA’s request in no way characterizes the pharmacy as a ‘federal actor’ for these purposes.”

In light of the fact that it was not possible for the physician to maintain an action to recover money damages from a private party for violation of his constitutional right to due process, the claim against the pharmacy chain was dismissed.

Dr. Fink 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, Lexington.