This series, Pharmacy and the Law, is presented by Pharmacists Mutual Insurance Company and your State Pharmacy Association through Pharmacy Marketing Group, Inc., a company dedicated to providing quality products and services to the pharmacy community.
THINK BEFORE YOU SPEAK
Pat the pharmacist had been having a stressful afternoon in the pharmacy when Mrs. Green came in with 3 prescriptions from Dr. White in the next town over. Pat looked over the 3 prescriptions and saw that they were all controlled substances and all were in high dosages.
“Mrs. Green, I can’t believe that you continue to see that doddering old fool, Dr. White! When are you going to start seeing a real doctor? If you keep going to Dr. White, he is going to kill you! Our store refuses to fill any prescriptions for any of his patients anymore.”
Two weeks later, the county sheriff served Pat with a lawsuit. Dr. White sued Pat for slander since Pat’s statement was made verbally to Dr. White’s patient in front of other customers in the store.
Defamation is the publication of anything injurious to the good name or reputation of another, or which tends to bring him into disrepute.[1] Oral defamation is called slander, while printed defamation is called libel. The purpose of libel and slander laws is to protect innocent individuals from the harmful effects of false, disparaging remarks about their reputation or their professional abilities. The defamatory statement must also be published, that is, it must be made to someone other than the person who is allegedly defamed. It should be pointed out that the truth is a defense to slander and libel. In other words, if you speak or write truthfully about a person, it is not slanderous or libelous, even if it is damaging to their reputation.
However, proving the truthfulness of a remark is not always easy. Objective evidence, such as a criminal conviction or a sanction by a licensing board, is a good way to prove the truthfulness of a remark. Look back at the statements made by Pat. How many of those statements are factual and objectively true? Maybe only the last one. But how is Pat going to prove it? In a law suit, Pat will have to list the names of the customers whose prescriptions were declined at the pharmacy.
The Store will have to list them as witnesses and then possibly call those persons as witnesses at a trial. Pat will have to articulate a reason why the prescriptions were not filled. Pat will also have to have an expert witness to state that this is the standard and practice of a pharmacist. It would aid in his Pat’s defense if other pharmacies in the area were not filling Dr. White’s prescriptions for the same reason.
Without objective evidence for the court to act upon, the question of truthfulness goes to the jury. If the jury decides that the statements were truthful, then Pat wins. If not, then the jury decides if they were defamatory. If they were, then the jury decides the amount of damages to award Dr. White.
By the time that Pat gets this far into the litigation process, Pat will have invested a significant amount of time and money. Could Pat obtain insurance coverage to protect against these types of situations? Generally yes. Many commercial policies contain coverage for personal injury and one of the covered injuries under personal injury is typically slander or libel. Care must be taken, however, because certain exclusions will apply. One common exclusion is for personal injury arising from publication of statements that the insured knew were false when they were made. Personal injury arising from a criminal act committed by the insured is also excluded under many policies. Insurance coverage won’t protect someone who intentionally defames another.
What is the best course of action for Pat? The best recommendation is to think before speaking. Know your audience. Know your content. Is it factual or inflammatory?
“Mrs. Green, I’m not going to fill these prescriptions because, in my professional judgment, I believe that they may be detrimental to your health.”
This statement is certainly less inflammatory and may not be actionable at all. But do not let fear prevent you from intervening. Pharmacists still need to ensure that patients are receiving safe, effective drug therapy. In this last example, Pat has still performed the valuable DUR and gate keeping functions without defaming Dr. White’s ability to practice medicine
This article discusses general principles of law and risk management. It is not intended as legal advice. Pharmacists should consult their own attorneys and insurance companies for specific advice. Pharmacists should be familiar with policies and procedures of their employers and insurance companies, and act accordingly.
[1] Barron’s Law Dictionary, Second Edition, Edited by Steven H. Gifis, Barron’s Educational Series, Inc., 1984.
NEVADA RULES ON PHARMACIST’S DUTIES
By Don. R. McGuire Jr., R.Ph., J.D.
The Nevada Supreme Court has ruled on the case asking whether seven chain pharmacy owners and one independent owner were rightfully dismissed from the civil case, Sanchez v. Wal-Mart Stores, et al[1]. The case arises from a June 2004 car accident caused by Patricia Copening. She was driving along a busy Nevada highway while under the influence of prescription medications. The accident killed one man, Gregory Sanchez, Jr., and injured another, Robert Martinez.
Prior to the accident, in June 2003, the Nevada Prescription Controlled Substance Abuse Prevention Task Force sent letters to 14 Las Vegas area pharmacies informing them that Copening may be abusing drugs. The letter informed the pharmacies that Copening had received approximately 4,500 hydrocodone tablets from 13 different pharmacies during the previous year. She continued to receive multiple prescriptions for hydrocodone-acetaminophen and carisoprodol between June 2003 and June 2004 when the accident occurred. She appeared confused. The police found prescription bottles and loose tablets in the vehicle. She was found to have hydrocodone in her system. She served nine months in jail after pleading guilty to reckless driving.
A civil case was filed by the Sanchez family, Mr. Martinez and his family against Copening, the doctors prescribing for her, and the pharmacies. The district court dismissed the pharmacies because Nevada law did not impose a duty on the pharmacies to take action after receiving the Task Force letter.
The Supreme Court of Nevada reviewed the case and answered two questions; First, did the pharmacy have a duty to act to prevent their patient from injuring members of the general public, and Second, did Nevada law allow third parties to maintain a negligence per se claim. The case was decided by a 5-2 margin, with a strong dissent.
The majority and the dissent agreed that under Common Law principles, a person has no duty to control the dangerous conduct of another person or to warn others of the dangerous conduct. There is an exception to this rule however. If there is a special relationship and the harm is foreseeable, the there is a duty to act. The majority and dissent diverged on the analysis of whether a special relationship existed in this case because they weren’t consistent on which parties form this special relationship. The majority talked about the relationship between the pharmacy and the victim, while the dissent talked about the relationship between the pharmacy and the patient. The majority notes that the pharmacy had no relationship with the victims and that they were, in fact, unidentifiable prior to the accident. This is an important point in the analysis because it is clear that there is a special relationship between a pharmacy and its patients.
The majority noted that the pharmacy had no requirement to act after it received the Task Force letter. However, they pointed out in a footnote that the regulations had changed since this incident, but declined to opine as to whether the decision would be different because of the rule changes. The ruling in the case was that the pharmacies had no duty to act because the law didn’t require them to act and there was no special relationship formed that would require them to act. The majority also ruled that a negligence per se claim could not be maintained because the laws in question were not intended to protect against the injuries that the plaintiffs had sustained.
While the pharmacies were dismissed in this case, the case should serve as a wakeup call to pharmacists. The dissent made some strong arguments, and even the majority hinted that the answer might be different under today’s laws. The court here said that the pharmacies did not have a duty to act upon information received from the task force, so they never provided guidance as to what a pharmacy should do if it were required to act. This issue is very likely to come up again and the next court could find that the pharmacy was required to act. Prescription drug monitoring programs work by providing information that a single pharmacy or prescriber is unlikely to obtain on their own. In the past, a single pharmacy was usually unaware of all of a patient’s activities in acquiring controlled substances and didn’t have enough information to take any action. In the present case, the pharmacies were notified that the patient was getting prescriptions filled at 12 other pharmacies around town. It is very possible that this additional information might provide the basis for a court or legislature to make a major change in the law of negligence.
This article discusses general principles of law and risk management. It is not intended as legal advice. Pharmacists should consult their own attorneys and insurance companies for specific advice. Pharmacists should be familiar with the policies and procedures of their employers and insurance companies, and act accordingly.
[1] Sanchez, et al. v. Wal-Mart Stores, Inc., et al., 2009 WL 5030703 (Nev.), December 24, 2009.
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