Can a Pharmacy be Liable for Not Filling a Prescription?

In this column in the past, we’ve looked at cases involving pharmacies that have been found liable for filling prescriptions that were for too large of a dosage or that were being written too soon in time. This month we look at a very different situation – does a pharmacy have a DUTY to fill a prescription, and can the pharmacy be held liable if it does not.

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The Facts

The case took place in Virginia. Mr. K was involved in a car accident at the end of November 2012. The accident caused numerous injuries including a broken leg.  After the accident, Mr. K was admitted to the hospital where he underwent surgeries on his leg and received other medical treatment for his injuries. His physicians determined that he would need anticoagulation therapy upon discharge to prevent further issues, and he was prescribed Lovenox and Coumadin upon his discharge. However, the hospital pharmacy was unable to provide the medications, so arrangements were made to locate a pharmacy that could dispense them. A hospital employee and Mr. K’s wife called a local CVS pharmacy and were told by the pharmacist that CVS had the medicines and would provide them. Mr. K was discharged from the hospital and after taking him home, his wife headed to the CVS to get his prescriptions.

However, once she got there, Mrs. K was told that there was a problem with the medications being approved for payment by the insurance company. While Mrs. K was able to get her husband’s other discharge medications from CVS, the insurance company refused to pay for the anticoagulation medications, and the pharmacy refused to fill them without payment. Mr. K never received the anticoagulant prescriptions, and subsequently died from complications due to not taking the anticoagulants, several days later.

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His wife sued both the insurance company and the CVS pharmacy. The pharmacy was sued for wrongful death due to negligent performance of an assumed duty. The plaintiff alleged that her husband was released from the hospital with the assumption that he was going to get the medications, and that the hospital would not have released him had it known that CVS would not provide the necessary medications. She further alleged that CVS had assumed a duty to provide the medications when she was told on the phone by the pharmacist that they had them and could fill the prescriptions.

CVS made a motion to dismiss the case.

The Court’s Decision

CVS argued that boiled down to its essence, the plaintiff’s claim was that CVS should be held responsible for Mr. K’s death because it did not give his wife the medications she wanted even though she did not pay for them. It argued that there is “no duty on the part of a retail store to give customers things for free” and that it certainly would have sold the medication to Mrs. K if she had paid for it.

Mrs. K argued that CVS assumed a duty when it told her and the hospital that it would provide the anticoagulation medication. This action, she argued, induced the hospital to discharge Mr. K and allowed him to leave the hospital. Thus, she claimed, CVS was responsible for the consequences for not providing the medication.

The court disagreed with Mrs. K and held that she had not stated a plausible claim that CVS assumed a duty to act. CVS never told Mrs. K that it would provide the medication at no cost, nor was it under any legal obligation to do so. The court held that Mrs. K had not cited any case even suggesting that “by telling a potential customer it would provide medication to the customer, a pharmacy assumes a legal duty to provide that medication free of charge and without anyone paying for it. Instead, a retail pharmacy like CVS understandably requires payment for medications it dispenses.” The court granted the pharmacy’s motion to dismiss.

Practically Speaking

Although the pharmacy was not liable for the patient’s death, no one wants such an outcome to occur.  In a case where a patient needs life-saving medication, efforts should be made to help the patient get access to it – whether than means working with the insurance company, or directing the patient to a manufacturer’s discount program or even another pharmacy. However, practically speaking, a pharmacy does not have a duty to provide medications without payment.

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly Director of Periodicals at the American Pharmacists Association.