The March 2017 issue of Legal News discussed a Superior Court case holding that a pharmacy had no duty to notify a prescribing physician that a patient’s health insurer required “prior authorization” to cover the cost of medication and, therefore, the pharmacy could not be held liable for the patient’s death resulting from the failure to obtain the medication. Following appellate review, however, the Massachusetts Supreme Judicial Court established that the pharmacy had “a limited duty to take reasonable steps to notify both the patient and her prescribing physician of the need for prior authorization each time [the patient] tried to fill her prescription.” The court reversed the award of summary judgment in favor of the pharmacy, thus allowing the case to proceed to trial. The case represents the first time this duty has been recognized and imposed in Massachusetts.

Pharmacist’s Duty

In its decision, issued last month, the SJC stated that “in Massachusetts pharmacists are statutorily obligated to take certain steps to identify and prevent medical risks to a patient” and the corresponding regulations of the Board of Registration in Pharmacy specifically contemplate that appropriate care to ensure the proper treatment of a patient “may include consultation with the prescribing practitioner and/or direct consultation with the patient.” In addition, the court noted that pharmacies have a long-recognized duty to fill prescriptions correctly and that “the modern trend of case law” is that when a pharmacist has knowledge of a patient-specific risk, the pharmacist has a duty to warn the patient or to notify the prescribing doctor of such risk. The court also reviewed relevant industry practices, including that insurers typically notify only the pharmacy of the need for prior authorization, and not the medical provider or patient, and that pharmacies, including the pharmacy in the case, routinely notify patients and prescribers’ offices directly of the need for prior authorization.

Notifying Patients or Physicians of Prior Authorization

The SJC reasoned that given their role in patient care, pharmacists are trained and well situated to notify patients and physicians when they have specific knowledge regarding a risk of harm to a particular customer filling a prescription and that a pharmacist exercising the skill and knowledge normally possessed by members of the professional community ordinarily would notify a patient and the prescribing physician that prior authorization is needed. The court concluded that in the context of the need for prior authorization, notice to the patient is insufficient to discharge the pharmacy’s duty and that it is “particularly important in these circumstances that the pharmacy also notify the physician directly to avoid foreseeable harm” to the patient who will not be able to obtain insurance coverage for the medication and might not otherwise be able to pay for potentially life-saving medications. The court limited the newly recognized duty to situations where insurance coverage is denied specifically because a prior authorization is required, and declined to extend the duty to require the pharmacy to follow-up with the physician.

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