Recently, a federal District Court for the Northern District of Indiana ruled that pharmacists in Indiana are not subject to patient lawsuits for their refusal to dispense certain prescriptions but can be sued by prescribing physicians for related claims or face administrative actions by the state for improperly refusing to fill a prescription. Therefore, pharmacies and pharmacists should carefully determine when they will not dispense a prescription.
Eight patients sued several pharmacies for a prolonged practice of refusing to fill prescriptions from an endocrinologist for human growth hormone (“HGH”) under Indiana law. The defendants asserted that they had developed internal procedures for identifying physicians with prescribing habits that they believed may violate federal law regarding distribution of HGH. Their protocol led to their “good faith belief” that the prescribing physician was inappropriately ordering HGH for his patients, and therefore they began refusing to fill his prescriptions in 2010.
Refusal to Fill Prescriptions
The patients brought their action under an Indiana statute that imposes a duty upon pharmacists to honor valid prescriptions unless doing so:
- Is illegal;
- Is not in the best interests of the patient;
- Furthers a patient’s addiction or habit; or
- Would otherwise be contrary to the patient’s health and safety.
Ind. Code. 25-26-13-16. The defendants moved for judgment on the pleadings, arguing that while such a duty does exist, Indiana law does not provide a private cause of actions for patients to bring claims against pharmacists when that duty is breached. Rather, enforcement of such a duty rests with the state. The court agreed, holding that no private cause of action granted plaintiffs the right to bring a lawsuit for failure to fill their prescriptions.
In entering judgment for the pharmacies, the court noted that Indiana law provides a means for patients to bring their concerns to the attention of the Attorney General’s office for further investigation by filing a complaint with the Attorney General’s Consumer Protection Division.
Defamation
The prescribing physician had filed a defamation action against the pharmacies for reportedly informing patients that the physician prescribed HGH fraudulently and illegally, that he was “coming up as a plastic surgeon” and that he was not prescribing HGH “for actual medical reasons.” Order at 17. The court refused to dismiss these claims against the defendants but also refused the prescribing physician’s request for fees for having to respond to the defendants’ anti-SLAPP (a statute designed to disincentivize frivolous and harassing defamation actions) allegations.
Health Care Takeaway
This case highlights the minefield that pharmacies and their employees must navigate when handling sensitive matters, including when the pharmacy and its employees believe that a prescription was issued improperly by a practitioner. While pharmacists have a corresponding responsibility to dispense only legitimate prescriptions, employees must be properly trained and instructed on what information can be provided to a patient in such cases to reduce the likelihood of litigation.
Should you have any questions regarding health care litigation or defamation claims, please contact:
- Drew B. Howk at ahowk@wp.hallrender.com or (317) 429-3607; or
- Your regular Hall Render attorney.
Should you have any questions regarding pharmacy management, dispensing or compliance practices, please contact:
- Susan D. Bizzell at sbizzell@wp.hallrender.com or (317) 977-1453;
- Jennifer F. Skeels at jskeels@wp.hallrender.com or (317) 977-1497 ;
- Nick A. Gonzales at ngonzales@wp.hallrender.com or (414) 721-0486; or
- Your regular Hall Render attorney.
