THE RIGHT TO REFUSE TO FILL A PRESCRIPTION

In 1978 the New York state court of appeals rendered a decision: pharmacists have no right to refuse to fill a prescription.  Of course, in this same time period, other courts held forth in cases like MCLAUGHLIN V SUPERX, LESLEY V SHRAKES, MCKEE V AMERICAN HOME PRODUCTS, and so on.  These cases did not directly address the right to refuse, but they laid duties and responsibilities upon pharmacists not previously attached to the profession.  The NY CA had belittled the profession in its decision, trying to hold the profession to the same standard as a SCOTUS justice once did: “no more important than a sales clerk.”

Of course, pharmacists are more important than sales clerks, and the NY holding faded into obscurity.  No other substantial interference with the right to refuse arose until 2004 when Illinois governor Rod Blagojevich issued an executive order directing the state’s pharmacists to fill all legitimate prescriptions.  This arose out of the conscience/moral/religious objections some pharmacists had to dispensing certain medications in the early 2000s.  The state’s pharmacists chose to file a lawsuit challenging the order; little came of the lawsuit but the definition of just what is a “legitimate prescription” again saw the order fade into almost oblivion.

However, the question of a right to refuse to fill a prescription has not, in and of itself, faded totally away.  Pharmacists are still having issues that arise.

Can a pharmacist refuse to fill an opioid prescription for a chronic pain patient if the fill is several days early?  Absolutely.  The casebooks are replete with examples of pharmacists being held liable for not doing so.  May the same pharmacist refuse to fill a prescription for a child because the child’s race or religion?  Absolutely not.

What criteria are essential for a legitimate refusal?  1)  The refusal must have a sound basis.  Don’t say that you refused to fill your ex-girlfriend’s new boyfriend’s prescription just because you think he is a son of a —–.    He may be, but that is no basis for refusing.

2)  The refusal must be based on professional judgment (PJ) and/or a scientific reason.   However, the basis for the PJ or science need not be 100%.  A reasonable suspicion of harm, abuse, etc is all you need.  And let’s define “reasonable” once again as “more likely than not,” or 51%.  Be 51% sure and act.

Example: Joe Pharmacist gets a phone call from Peter Patient.  Peter has determined that his insurance will pay for his oxycodone five days before it is due and he wants it filled then.  Joe says no, as he is aware of the cases mentioned above.  A legitimate  refusal?  Sure.

Example: Joe Pharmacist checks Patty Patient’s profile.  Patty is taking her estrogen hormone replacement therapy irregularly.  Joe talks to Patty, who says she takes the estrogen only when the hot flashes are “intolerable.”  Joe checks the literature which states the chance for cancer from HRT goes up exponentially with intermittent use.  Joe refuses to refill Patty’s prescription.  A legitimate refusal?  Obviously, this is a harder one.  Let’s make it more difficult: what if the prescriber tells Joe to fill it anyway?  I still hold that this is a legitimate refusal, though not of the same level as the first example.

In the second example, cases vary.  Some have held pharmacists liable, due to our superior knowledge of medications, while others have held that patients have “assumed the risk” after being counseled by the  pharmacist.  The second example is occurring more and more often.  I recently had a pharmacist contact me with a patient who had a heart attack and yet wanted to stay on his Adderall XR 30mg, 2 caps QD dose.  The patient’s prescribers all wanted to have the patient stop the drug but the patient claimed that the Adderall was the only way he could get out of bed and face the day (it was adjunctive therapy for depression).  I had the pharmacist refuse to fill until the patient signed a “Memo of Understanding and Waiver of Liability.”

As I wrote above, this scenario is occurring more and more often with medicines and their interactions, as well as interactions with medical conditions, state rules, CDC guidelines, etc.  Pharmacists dispense dangerous medications (“that’s why they are prescription only!”) but the fact that they are prescription only or are being legitimately prescribed is not enough today to protect the pharmacist from liability.  As a profession, we have a duty and responsibility to act or refuse to act when the necessity exists.

An issue with refusals that creates problems for pharmacists that occurs frequently is when another pharmacist—partner, PIC, pharmacy supervisor—steps in and fills a prescription after it has been refused.  For a while (it has fallen off recently), I had regular complaints of prescriptions being refused and a pharmacy supervisor coming to the store and filling the disputed Rx.  This is, way more often than not, purely and completely wrong.

Yet, many employers hesitate to turn down any prescription, especially in these days of shrinking reimbursement.  Numbers do help make up where fee per prescription are half of what they used to be.  But this is understandable only to a degree.  Patient health, preventing abuse and misuse, and professionalism must supercede.

To step in and do what another pharmacist has refused to do is an interference with PJ.  It undermines the pharmacist-patient relationship, it undermines the PJ of the first pharmacist, it provides those who complain with an outlet for dis-satisfaction with a pharmacist (OK if the act was wrong but wrong if the refusal was correct, as it often seems to be as described to me).

What do you do if another pharmacist steps in and fills a prescription you denied?  Talk to this person first and see if the matter can be resolved between you.  Stress that a basic precept of professionalism is respect for the acts of other pharmacists.

Consider contacting your Board of Pharmacy.  State Boards generally protect PJ like a grizzly bear protects her cubs: strongly, ferociously, and quickly.  Look for a pattern of abuse of PJ before doing so—don’t bother a Board over one incident—the Board will rightfully tell the two of you to work it out between you.  But if there are repeated incidents do what you need to act.

The right to refuse to fill a prescription is not under massive attack by corporate masters, employers, patients and prescribers these days but the right is still being challenged, and often.  Pharmacists should take appropriate steps to protect not only their professional status but also their license to practice.

 

NOTE: this article only touched on the right to refuse for reasons of conscience or morals.  Readers interested in this aspect of refusing to fill a prescription are referred to my earlier blog on this topic.

NOTE: got an idea or question you would like to see the subject of my blog?  You can email me at pharmacylawsource@gmail.com  Your name will not be mentioned and dates, names, places will be changed.  Facts of the case will be altered but only enough that the basic issue of the case/question remains intact.

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