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.

4 thoughts on “The Right to Refuse to Fill

  1. Any advice/opinions about refusing to fill based on customer behavior? It is not unusual in my pharmacy to be treated less than ideally. Do I have the right to refuse to fill for a patient based threatening speech? E.g., “I should come across this counter and smack your face.” (Not a hypothetical example). Or what if they have profusely cussed my staff and myself. Can I choose not to fill for them.?

    1. Bad mannered customers can be hard to get rid of in most environments. Due to the corporate policy of always siding with the customer, no matter how ill-mannered or rude the customer is, it is still going to be your fault. They act atrociously and you get lectured and/or written up.
      I take the following attitude back: if you use cuss words, I will politely ask you once to cease doing so. After that, I hang up or ignore you.

      Make any kind of threat towards me or my tech and corporate be damned–you are taking your business elsewhere.

      I have spent too much of my life in the classroom and in stressful environments that I am not going to demand respect in some ways for what I do.

      1. I have a completely out of context memory of you stating that we should not explain our professional judgment to a patient, i.e., not to elaborate on our reasoning. Do you know what I might be thinking about? Or, did I fabricate this memory?

  2. LAN, that does not come to mind, but there are times/circumstances where you do not need nor should you explain your PJ reasoning. I do not necessarily like this, but one of the main reasons for taking the stance I did was that an explanation is better (though not by much) than the current corporate apologize-for-everything attitude. Thinking about this, overall with or without corporate interference, i think most customers would do better with an explanation if it is understandable to the lay person. However, it should be the pharmacist’s decision whether or not to say anything.
    Thanks for the comment

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