Massachusetts’ Court Creates a New Duty for Pharmacies to Notify Prescribers of Prior Authorization Requirements
Last week, Massachusetts’ Supreme Judicial Court ruled that Walgreens had a duty to inform a patient’s physician of the need for prior authorization in order to obtain her potentially life-saving medication. The case marks the first time such an obligation has ever been placed on a pharmacy. The case is Correa v. Schoeck et al., Case No. 12409, in the Supreme Judicial Court of Massachusetts.
The Correa case followed the 2009 death of a 19-year-old who suffered a massive seizure and later died because she had been unable to fill her epilepsy medication due to some missing paperwork. Her mother subsequently filed a wrongful death suit against the Walgreens, stating that the pharmacy should have done more to help her daughter receive the medication she needed. According to the plaintiff, she tried five times in six weeks to fill her daughter’s prescription and also made numerous attempts to contact her daughter’s physician's office during this period.
A district court previously granted summary judgment for Walgreens, but the Massachusetts Supreme Court reversed and found for the plaintiff. Representing the majority opinion of 6-1, Justice Lenk wrote: “The skill and knowledge of pharmacists today involve more than the dispensing of pills. 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 went on to state that notice to the patient is "insufficient" to discharge a pharmacy's duty, but in these circumstances a pharmacy also has an affirmative duty to notify the physician directly to avoid foreseeable harm. Importantly, the court limited the scope of the new duty pharmacy's stating: “Walgreens’ duty extends no further, however — the pharmacy was not required to follow up on its own or ensure that the prescribing physician in fact received the notice or completed the prior authorization form. A patient may decide at any point to take the prescription to a different pharmacy, so the first pharmacy cannot assume that silence on the part of the prescribing physician means that the physician has not received the notice.” In doing so, the court expressly rejected the plaintiff's assertions that the pharmacy should have followed up repeatedly, if necessary, to make sure the prescriber received the request for authorization, holding that a single, documented attempt to contact the doctor each time the prescription is filled is sufficient.
Justice Lowy disagreed with the majority decision on the grounds that the duty recognized by the majority run afoul of established principles of tort law and is “neither implied by contract, mandated by statute, nor — until today — recognized by common law.” Lowy's opinion will likely resonate with many in the industry because it highlighted practical consequences of the decision, namely that pharmacies will now be required to establish burdensome record-keeping standards and new processes and procedures to deliver notifications.
A separate wrongful death suit has been filed against the physician. The role of the physician was not an issue considered by the court.
- Roger N. Morris: (602) 229-5269 / roger.morris@quarles.com
- Simone Colgan Dunlap: (602) 229-5510 / simone.colgandunlap@quarles.com