Monthly Archives: February 2015

HOW TO HANDLE A DEPOSITION

As a pharmacist, you made an error.  The patient or the patient’s family (hopefully not the patient’s estate) have sued.  You have been served the summons and complaint.  Your lawyer (or your employer’s) has taken on the matter and it is progressing.  You have been called to make a deposition.

A deposition is a part of discovery, the legal process by which both sides build their cases.  This is done by collecting evidence through several means, usually the collection of documents and testimony by all the parties and expected witnesses.  (This means the whole case is known by both parties prior to the trial.  That is right.  The trial is mostly just a show for the jury.  If your lawyer is surprised at trial, you should be a little worried someone did not research the case well.  If your lawyer is surprised twice at trial, get another lawyer.)

A deposition is out-of-court testimony to determine several facets of the case: how well the deponent (the person testifying at the deposition) knows the case, how the deponent will look to jurors, whether the facts ascertained through documents stand up to the oral testimony, whether this testimony is or is not vital to the case, even whether the case should be pursued or dropped.

The deposition, therefore, is a means for the opposing lawyer (OL) to see what kind of case the other side has in this certain person.

A deposition is sworn testimony, just like at trial.   It is outside the courtroom, usually in a lawyer’s office conference room.   It begins with the deponent pharmacist being sworn to tell the truth.  This is done by the court reporter who will record, videotape and transcribe every word said.  The other people present in the room are all the lawyers involved in the case.  Depending on the number of parties, this can be quite a few.  I recently attended a deposition where there were eight lawyers representing seven parties.

How do you prepare for and handle a deposition?  When it takes place, here is what you should do:

  1. Tell the truth. The majority of lies told in a deposition are discovered and caught.  Having those thrown up at you during a later trial will have the jurors against you in a New York second, even if you were an extremely sympathetic person a moment before.  And lies just mean bigger awards to the injured party.  Harmful truth is easier to take than getting caught in even a small falsehood.
  2. Hesitate before answering every question, even if the question is “What is your name?” Count your fingers, count your toes, name the Seven Dwarves in your head, consider the question being asked, but hesitate, pause. This gives the opposing lawyer the knowledge that you are prepared. Also, not every question is permissible or admissible in court; it gives your attorney a chance to object.  You will end up responding to the question at the deposition.  However, your lawyer can show the objection to the judge and have it denied to the jury.
  3. Answer only the question asked and give NO more information. Make them ask. If they ask for your home address, do not add in your phone number. If they ask how many pharmacists work at your pharmacy, do not volunteer how many techs also work there. Make them ask.
  4. If you do not understand a question, ask that it be stated again or rephrased. They are going to ask you the same question many .times, rephrasing it to try and trip you up. Do not be afraid to tell them to ask again or rephrase, even more than once for the same question..
  5. If you do not remember, say that. “I do not remember.” “I do not know.” Do NOT make guesses. Most times, depositions are taken long after the incident and memories have faded.  Do NOT try to reconstruct a memory. If you are pushed to give info you are unsure of (“How many techs were on duty that day?”), make sure to say: “I do not know the answer to that, but I always have at least two techs working with me.”
  6. The attorneys questioning you are going to be as friendly as they can be. In your mind, picture them as Hitler, Attila the Hun, ISIS. They are the enemy. Being friendly is not a sign of sympathy or empathy; it is a tactic to suck you in to trust them when they have a knife ready to plunge into your trusting back. They are going to try and make you look guilty–they are not your friends.
  7. Speak confidently. Show no fear.  Pharmacists are one of the most highly respected professions and lawyers share that respect for us.  Do not go overboard and be egotistical, but even in acknowledging an error be confident.  The best of us make mistakes, and the OL knows that too.
  8. Make NO admission of guilt. Acknowledge the circumstances, acknowledge the error if you must, but do not say “I made an error” or “I made an oversight” or “I did wrong that day.”  That is for the OL to prove, not for you to provide for her.

Do not be surprised if some topics that you think are important are not covered.  At the deposition, the OL is simply measuring your take on points that are helpful to her, not necessarily the overall case.

A final note.  Do NOT attend a deposition without a lawyer.  And think twice before you go with just your employer’s attorney.  Remember, that lawyer is going to be on your side, but MORE on the side of your employer.  If there is an iota’s chance that you and your employer could become adversarial over the incident, get your own counsel and have him present.  Spend the money to protect your career.

As time goes by, the number of lawsuits against pharmacists is increasing.  This means that more and more of us are going to get to experience the judicial process and “undergo” a deposition.  With the right preparation, this ordeal—no use calling it anything else–can be less of an ordeal.

The Right to Refuse to Fill

In 1978, a New York Court of Appeals held that pharmacists have no right to refuse to fill a prescription.  The ruling probably held for that case alone, and then faded into deserved obscurity.

 

Not that many years ago, Illinois Governor Rod Blagejovich, exhibiting for the first but certainly not the last time his ability to put his foot in his mouth, entered into the moral and ethics argument of filling prescriptions and signed an executive order requiring Illinois pharmacists to fill any legitimate prescription.  In time, the Governor went to jail and Illinois pharmacists have reshaped this order to reflect professional and not political goals.

 

(This blog entry is not going to address the issues regarding pharmacists’ morals and ethical decisions regarding filling prescriptions.  Readers are referred to my previous entry re: Conscience Clauses.)

 

So, the question is, does the pharmacist have an absolute right to refuse to fill any prescription?  The answer is “no” but the circumstances under which a pharmacist may be forced to fill a prescription she is unwilling to fill are so few and far between that the answer is very, very close to “yes.”

 

Most pharmacists, and their employers, want to fill prescriptions and want to fill as many as they can.  Doing so is the heart of pharmacy, at least for the present.  Doing so far more often than not increases the quality and quantity of life for the patient/customer.  Doing so provides the pharmacist with a sense of satisfaction and a decent income.

 

Yet, the scrupulous pharmacist also wants to be able to say “no” to the questionable prescription, whether “questionable” is an unscrupulous prescriber, too high a dose, there is a reasonable suspicion of misuse or abuse, a drug interaction, etc.  In many cases, the “no” is temporary and the dispensing is merely deferred until clarification.

 

Questioning prescriptions (and prescribers) is relatively new to the profession.  “Type, count and pour” was the standard for centuries.  Not just decades, centuries.  Cases such as American Home Products held that all a pharmacist was to do was to fill the prescription as written; if the prescription as written was dispensed and the patient suffered ill effects, there was no pharmacist liability.  Even re-writing the sig to make it more understandable to the patient was not recognized/permitted by most states until the 1970s-80s.

 

In 1978, the same year of the New York case above, another state court decided McLaughlin v SupeRx and this case did have national repercussions.  The court held that pharmacists did have duties beyond “type, count, and pour.”  As professionals, one of these duties was to refuse to fill a prescription.  (Here, the prescriber was writing for monthly quantities of a controlled substance on a weekly basis.  The pharmacist was filling each prescription when presented instead of deferring until due.  The patient overdosed and the family sued and won.)

 

Now, the path was plain.  Pharmacists have the right to refuse to fill a prescription.  But there must be a basis for the refusal/deferral.  That basis must have a foundation in the pharmacist’s professional judgment (PJ).  When PJ indicates it is too early to fill, the prescriber is unscrupulous, it is dangerous to fill as written, etc, the pharmacist may refuse to fill without liability.

 

The exercise of PJ must be reasonable.  This means that the pharmacist need not be 100% sure that of bad results from dispensing, but only reach a reasonable conclusion of such results.  Reasonable is thus defined as any reasonable pharmacist with similar education, skills, and experience reaching the same conclusion as the pharmacist to whom the prescription was presented.  This even denies liability where the pharmacist acted in good faith but was wrong.

 

Since a good PJ basis is not hard to find, the right to refuse becomes, as stated above, almost absolute.  Any perceived danger to the patient, the patient’s family and society in general from dispensing the prescription can serve as a basis for refusal/deferral.  Most of the time, refusals are easy.  A prime example most of us have experienced: a prescription from an ER is adjudicated and the PBM rejects the prescription as the patient got a month’s supply of the same controlled substance at another pharmacy two days ago.

 

One example of where refusal was inappropriate: Jane Pharmacist refused to fill a prescription for Sally Customer.  Sally complained to Jane’s boss, and it turned out Sally was now dating Jane’s ex-boyfriend.  Jane Pharmacist had refused the prescription based on a soured romantic relationship.  Jane was punished by her employer.  Here, the basis of refusal was personal, and as professionals we cannot permit this.

 

When refusing/deferring a prescription, be professional to the patient so long as the patient is receptive to discussion.  Explain politely the reason for not filling at this time.  At the same time, if your PJ or common sense demands it, be firm.  Hand the prescription back but make such notations as professionalism requires (“Filled for 120 tabs two days ago at XYZ Pharmacy”).  Never hand control of the situation over to the patient/customer.

 

This brings up the latest issue I am encountering regularly from pharmacists: patients complaining to corporate employers.  Too many of these employers embrace “the customer is always right” philosophy even to the detriment of their employees’ professionalism.  Pharmacists contact me too often that they have been overruled on a PJ decision to not fill or to defer filling by a non-pharmacist superior.  Pharmacists are wrongfully having to weigh poor evaluations, if not termination, against their PJ, as well as patient safety.

 

It is easy to say that PJ should win out, but PJ does not pay the mortgage.

 

However, I will say that.  Further, pharmacists getting this type of pressure from employers should write up the situation and submit it as a complaint to their state board of pharmacy.  As I have written before, at this time Boards are protecting the proper use of PJ, generally doing so ferociously.  Finally, if there should arise a lawsuit over the failure to refuse, who is going to be sued and who is going to be punished by the state board?   The employer will be included in the lawsuit, but you will be also, and you will be alone before the board.  And boards of pharmacy do not care much for the “my boss made me do it” defense.

 

One last note.  What about a prescription the pharmacist knows to a certainty she should refuse but feels a dangerous situation might arise upon doing so?  Fill it.  Her safety is paramount over one bad prescription, and no board of pharmacy is going to punish her.

 

Pharmacists have a right to refuse to fill prescriptions, so long as there is a reasonable basis for such refusal.  Professional judgment must play a part in that decision.  The pharmacist who does this reasonably is an asset to his job, employer, community, and profession.