Overzealous exercise of duty lands Rx'er in hot water

Drug Store News, Feb 19, 1990

Overzealous exercise of duty lands Rx'er in hot water

All pharmacists have been faced with the decision of whether to turn in a "customer" who has allegedly tried to get a fraudulent prescription filled. If the pharmacist's assumption is correct, he or she comes out of the situation satisfied that professional responsibility was upheld. But what happens if the pharmacist is incorrect and actually turns in an innocent person?

GEORGIA, 1989 -- A customer called her pharmacy, a chain drug store where she has been a customer for four years, to renew a Fiorinal #3 with Codeine prescription for her migraine headaches. Evidence in the trial uncovered that she had previously received four such prescriptions, two or three of which were refillable. Normally the customer, who was on a first-name basis with the pharmacist, spoke directly with the pharmacist when refilling a prescription. In this particular instance, the customer asked for a refill from an assistant or an intern who answered the phone. The customer said "I am calling to renew a prescription for [herself]." The intern asked if the prescription was refillable, the customer said she didn't know. She was asked to supply the physician's DEA number. She said she didn't know the number and told the intern to call the doctor's office. At this point, the pharmacist took over the phone call. All this time the pharmacist assumed it was someone calling from the physician's office, and thought it strange that they could not supply the proper DEA number.

Following good pharmacy practice, the pharmacist called the doctor's office to verify that they wanted this prescription renewed and to get the physician's DEA number, which, of course, is required on all controlled substance prescriptions. The office said that no one had called in a prescription. After getting off the phone, the pharmacist commented to a fellow worker that she thought her customer was a hypochondriac and that she was attempting to fraudulently obtain the prescription.

Further testimony in the case revealed that at no time did the pharmacist inquire as to whether or not the physician would have permitted the prescription, check the store computer to review the status of the prescription or call the customer to attempt to clarify the situation. Also, testimony showed that the physician did not believe that the customer abused prescription medications and probably would have authorized the refill.

Thinking she was doing the correct thing, the pharmacist called DEA. A police officer arrived and arrested the shocked, and obviously upset, customer when

she came in to pick up the prescription. She was taken to jail handcuffed, where she was fingerprinted and photographed. The pharmacist was subpoenaed to provide the detective on the case with a list of all the customer's prescriptions underlining the "hypnotics". Although the customer was held in jail for some nine hours, the district attorney's office did not press charges.

Having not done anything wrong, the customer and her husband sued the chain and the pharmacist working in the store where the incident occurred for intentional infliction of emotional distress, malicious prosecution, false imprisonment, negligence and loss of consortium.

A jury awarded the customer $200,000 on her claims of emotional distress and her husband $20,000 on his loss of consortium claim. The trial court, however, overturned the jury's verdict. The case was appealed. Results: The higher court noted that there was a relationship of professional trust between this customer and the pharmacist. The pharmacist was in a position to control the plaintiff's health and welfare to the extent of properly dispensing needed prescriptions. Furthermore, the pharmacist had access to computer documentation. The trial jury determined that evidence presented showed that the pharmacist had "malicious purpose" or "wanton disregard" for the patient. This evidence included the pharmacist's hypochondriac opinions about the customer, and a limited investigation prior to calling DEA.

Because there was some evidence to support the jury's determination that the pharmacist intentionally inflicted emotional distress upon her customer, the Appellate Court reversed the trial court's overturning of the jury's original verdict. The original verdict stood. Gordon et al. v. Frost et al.; and vice versa Case Nos. A89A1494 & A89A1495 (GA. Ct. Appl. Oct. 26, 1989)