Generally, getting a prescription filled is straightforward. Your medical provider issues a prescription and hands it to you to fill at the pharmacy of your choice, or may even “call it in” to your designated pharmacy so that the medication is ready for you by the time you get there. However, insurance companies may sometimes request additional documentation of medical necessity from the prescribing physician before authorizing continued coverage for certain medications or for durable medical equipment. Even then, communication between the patient, doctor, insurance company, and pharmacy often goes smoothly, but what happens if communication breaks down and a patient is deprived of needed medication waiting for “prior authorization”? Does the pharmacy share in liability for adverse consequences?

Determining a Pharmacy’s Liability in a Wrongful Death Claim</h2
In one recent Massachusetts case, a Superior Court judge held that a pharmacy that declined to refill an epileptic woman’s prescription for anti-seizure medication because it lacked prior authorization from her insurance could not be held liable for her later death from a seizure. In that case, the patient had the initial prescription filled at the pharmacy, however, when she returned for a refill, the pharmacist informed her that her insurance required prior authorization for continued coverage of the medication and that she should notify her doctor. The pharmacist also told her that he would send a fax to notify the doctor of the prior authorization requirement, which was the pharmacy’s policy, and would contact the doctor’s office by telephone. Over the next two months, the woman and her family contacted the doctor’s office several times and attempted to fill her prescription at the pharmacy on four occasions, up to two weeks before her death.

The woman’s estate sued the pharmacy for wrongful death, arguing that the pharmacy had voluntarily assumed a duty of care through its assurances and offers of help and, therefore, the pharmacy could be held liable for negligently failing to inform the doctor of the prior authorization requirement. The pharmacy moved for summary judgment contending that it had no duty to ensure that the woman received her prescription, nor did it voluntarily assume a duty to notify the doctor of the required prior authorization.

Violation of Pharmacy Policy Does Not Equate to Negligence

In finding for the pharmacy, the trial court judge determined that under the circumstances, merely telling the woman that it would contact the doctor did not create a duty because the pharmacy also instructed her to contact the doctor herself which she did, although to no avail, such that there existed no evidence that any failure on the part of the pharmacy increased the risk of harm, and no evidence that the woman reasonably relied on the statements that the pharmacy would contact the doctor. The judge also noted that although it was the pharmacy’s policy to notify physicians of the prior authorization requirement and that an employee’s violation of company rules is some evidence of the employee’s negligence, the violation could not create a duty where none existed independently. The judge also reasoned that recognizing a duty in the situation presented “would place an onerous burden on pharmacies,” obligating them to monitor or supervise prescribing physicians and share in the responsibility to provide insurance companies with necessary documentation. The decision is currently on appeal.

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