Pharmacy Law: Refusal to Honor Certain Controlled Substance Prescriptions

Pharmacy TimesJune 2014 Women's Health
Volume 80
Issue 6

Refusal to honor prescriptions for controlled substances written by a physician under investigation causes legal action.

Refusal to honor prescriptions for controlled substances written by a physician under investigation causes legal action.

Issue of the Case

When pharmacists at a national chain pharmacy in a southern state refused to honor prescriptions written for controlled substances by a local physician who was under investigation by the US Drug Enforcement Administration (DEA) and at times told patients the physician was under investigation, may the prescriber maintain a lawsuit against the chain for intentional interference with business relationships and invasion of privacy?

Facts of the Case

An investigation was launched by both representatives of local law enforcement and the DEA into the activities of a solo practitioner whose practice was described as focusing on “occupational medicine” and “medical pain relief for the dedicated worker.” That investigation never resulted in criminal charges against her or any disciplinary proceedings by licensure authorities.

The physician filed a lawsuit against the local police department and the investigator from the DEA along with other DEA officials. Her complaint in those proceedings was that the law enforcement officials had contacted local pharmacies and discouraged them from honoring prescriptions she had written for her patients.

The case being addressed here was also filed by the physician in the local US district court against 4 national chains operating pharmacies in the area. In this case, she alleged 2 wrongdoings by the defendant pharmacies: first, that pharmacists at their pharmacies had refused to honor her prescriptions for controlled substances; and second, that when doing so, the pharmacists told patients that the basis for their refusal was that the prescriber was under investigation by the DEA. The legal basis for the claims was that the refusal to honor her requests for dispensing constituted intentional interference with her business relationships with her patients under the relevant applicable state law and that the comments made to patients invaded her privacy. A court filing alleged that pharmacists at the 4 defendant chains had refused to honor prescriptions this frequently: chain A, 16 times; chain B, 15 times; chain C, 14 times; and chain D, 1 time.

In response to the case filed against them, the pharmacies moved to have the lawsuit dismissed.

The Court’s Ruling

The judge at the US district court granted the motion made by the defendant pharmacies, dismissing the case.

The Court’s Reasoning

The judge first looked at whether the claims made by the physician supported the elements the law required to establish intentional interference with business relationships. One of those elements was intent by the defendants to cause termination of the existing business relationship between the physician and her patients who had presented prescriptions for dispensing.

The pharmacies argued that the actions of their pharmacists were not motivated by intent to interfere with an existing business relationship; rather, the pharmacists were merely discharging their professional legal responsibilities under federal and state law. Pointing to the “corresponding responsibility” provision in DEA regulations and expectations under state law, the judge concluded that if the pharmacists had not done what they did, they might have placed themselves in jeopardy of losing (1) the ability to dispense controlled substances or (2) their licenses to practice. Exercising professional judgment and discretion is an expectation the law has for pharmacists. There was no evidence presented to support the plaintiff’s claim that the refusal to dispense was based on bad faith or an intent to injure the prescriber.

Turning to the statements made to patients about the reasons for refusal, the judge concluded that making such a truthful statement about the state of affairs was not an “improper means” of interfering with the business relationships.

The plaintiff had presented no proof to the court that what the defendants’ pharmacists had done had caused her to lose either existing or future patients. Thus, no legally cognizable damages were established.

Turning to the allegation that those actions had invaded the physician’s privacy, the judge pointed out that the plaintiff/physician could hardly advance such a claim when she had publicly disclosed the nature of the investigation when she filed the other lawsuit against local law enforcement officials and representatives of the DEA. Further, the judge viewed the disclosure to the patients as “limited” and therefore insufficient to establish “publicity.”

The judge said that it would be unreasonable to conclude that the statements made by the pharmacists to patients could be characterized as “highly offensive.” And as a last point, the judge noted that investigation of prescribing practices for controlled substances was indeed a “legitimate matter for public concern.”

Dr. Fink is professor of pharmacy law and policy and Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.

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