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In the pill mill age, it's time Florida invokes a "healthcare privilege" providing pharmacists layered insulation from defamation.

Any doctor or clinic that prescribes narcotics for nonmedical reasons or in excess of accepted standards of medical care in the community is colloquially known as a "pill mill." According to Florida's attorney general, Florida is a leading state in the proliferation of pill mills, resulting in seven Floridians dying every day and countless others throughout the nation from the abuse of controlled substances. (1) The Florida Legislature responded with an initiative to discourage improper prescribing of controlled substances by creating The Florida Prescription Drug Monitoring Program, known as E-FORCSE (Electronic Florida Online Reporting of Controlled Substance Evaluation Program). However, an unintended side effect of attacking the root problem through indirect means by focusing on the pharmacists who fill these prescriptions rather than the physicians who prescribe them is the creation of a practical dilemma for the pharmacists by having to choose between one evil or another: filling questionable prescriptions and exposing themselves to administrative discipline and liability exposure for any customer overdose, or telling the customers any well-founded but unconfirmed concerns about the practices of the prescribing physicians thereby exposing themselves to a defamation claim by the prescribing physicians. The Florida courts have started to respond to this quandary, but more is needed, including, perhaps, further relief from the legislature through enactment of a statutory privilege.

In McLeod v. WS. Merrell Co., Division of Richardson-Merrell, Inc., 174 So. 2d 736, 739 (Fla. 1965), the Florida Supreme Court first acknowledged that a cause of action for negligence might arise when a pharmacist does not use due and proper care in filling the prescription, although no indication was given at that time of which circumstances would give rise to a viable claim. The First District gave one example of a circumstance when a viable negligence claim could be pursued against a pharmacist in Dee v. Wal-Mart Stores, Inc., 878 So. 2d 426, 427 (Fla. 1st DCA 2004), when a pharmacist filled an undated prescription for a powerful painkiller that had to be taken on a particular drug regimen four months after the prescription had actually been written, resulting in toxic overexposure and death of the patient. The court held that "[w]hen a pharmacy fills a prescription which is unreasonable on its face, even though it is lawful as written, it may breach this duty of care." (2)

The next progression of a pharmacist's duty came from the Fourth District in Powers v. Thobani, 903 So. 2d 275 (Fla. 4th DCA 2005), after a patient died of an overdose of narcotic painkillers. The court noted the "strong policy basis to support a pharmacy's duty to warn customers of the risks inherent in filling certain repeated prescriptions" as well as the duties of Florida pharmacists pursuant to the Florida pharmaceutical regulatory statutes and administrative codes. (3) In so noting, the Fourth District held that the actions of two retail pharmacies in allegedly filling every prescription written for a patient, without question, which included numerous prescriptions for narcotics too close in time and within days of having filled previous prescriptions, might be sufficient to sustain negligence claims for failure to use due and proper care. (4) Most recently, in Oleckna v. Daytona Discount Pharmacy, 162 So. 3d 178, 181-82 (Fla. 5th DCA 2015), the Fifth District held:

A pharmacy owes a customer a duty of reasonable care. Pharmacists are required to exercise that degree of care that an ordinarily prudent pharmacist would under the same or similar circumstances ... [and] a pharmacist's duty to use due and proper care in filling a prescription extends beyond simply following the prescribing physician's directions. We refuse to interpret a pharmacist's duty to use "due and proper care in filling the prescription" as being satisfied by "robotic compliance" with the instructions of the prescribing physician. See Arrington v. Walgreen Co., 664 F. Supp. 2d 1230, 1232 (M.D. Fla. 2009) (holding that, under Florida law, customer's cause of action against pharmacy arising from pharmacist's alleged failure to warn customer that prescription contained substance to which customer was allergic when filling prescription was sufficient to plead that pharmacy had duty to use proper care in filling prescription beyond simply following prescribing physician's directions).

What becomes clear from the developing trend of Florida law is that pharmacists are being held more accountable for filling lawful prescriptions that are tantamount to the improper or excessive use of controlled substances. Stated otherwise, a pharmacist who robotically fills a prescription for a controlled substance written by a pill mill faces liability exposure. Presented with this reality, it is also becoming increasingly more common for a pharmacist to refuse to fill a questionable prescription, for a variety of reasons, including the nature of the prescription itself; the circumstances and appearance of the customer and the customer's prescription history; and the circumstances and background of the prescribing physician. In attempting to limit their negligence exposure, however, many pharmacists unwittingly find themselves presented with another problem: explaining themselves to disgruntled customers whose prescriptions have been refused and dealing with the aftermath of prescribing physicians who believe the pharmacist has defamed them.

Given the context of any statements relating to a prescribing physician's business practices, the type of defamation pursued generally falls within the "per se" variety. "Communication that imputes to another conduct, characteristic, or condition incompatible with the proper exercise of his lawful business, trade, profession or office is slander per se." (5) Therefore, the pharmacists are rendered particularly susceptible to a plaintiff seeking to assert a claim for punitive damages based upon the argument that there is a legal presumption of malice or intent to injure. "[W]hen the claim is defamation per se, liability itself creates a conclusive legal presumption of loss or damage and is alone sufficient for the jury to consider punitive damages." (6)

Florida law provides a framework for the recognition of a qualified privilege to counteract the legal presumption of malice or intent to injure that is ordinarily present in defamation per se claims.

[O]ne who publishes defamatory matter concerning another is not liable for the publication if the matter is published upon an occasion that makes it conditionally privileged and the privilege is not abused. See, e.g. Nodar v. Galbreath, 462 So. 2d 803, 809 (Fla. 1984); Abraham v. Baldwin, 52 Fla. 151, 42 So. 591, 592 (1906). "A communication made in good faith on any subject matter by one having an interest therein, or in reference to which he had a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which would otherwise be actionable, and though the duty is not a legal one but only a moral or social obligation." Nodar, 462 So. 2d at 809 (citing 19 Fla. Jur. 2d Defamation and Privacy [section]58 (1980)). (7)

Notwithstanding this general framework, historically, a pharmacist could have faced an uphill battle trying to establish the existence of a qualified privilege in the context of communicating with pharmacy customers. However, that tide may be shifting with a recent case from the Middle District of Florida, which held, consistent with [section]595 of the Restatement (Second) of Torts, (8) that pharmacists do indeed have a qualified privilege under Florida law when communicating with their customers about the qualifications or propensities of the customers' prescribing physicians.

In Lefrock v. Walgreens Co.,--Fed. Supp. 3d--, 2015 WL 226034 (M.D. Fla. Jan. 16, 2015), a prescribing physician plaintiff filed slander per se claims alleging that various Walgreens employees defamed him by making false statements pertaining to his medical reputation and ethics. The district court, recognizing under Florida law that the legal presumption of malice ceases to exist when the defendant has a qualified privilege to make the statements, explained that the pharmacists' alleged statements about the prescribing physician plaintiff were privileged, as follows:

In order for a statement to be privileged it must be "1) made in good faith; 2) with an interest to be upheld; 3) published on a proper occasion; and 4) published in a proper manner." Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906); Leonard v. Wilson, 150 Fla. 503, 8 So. 2d 12 (1942)....

Here, the statements at issue were made by a Walgreens' pharmacist to pharmacy customers at the time the customers attempted to fill prescriptions, and the apparent purpose of the statements was to inform the customers about the physician who wrote the prescription.

The Walgreens pharmacists acted in good faith and were upholding a legitimate interest since the statements were made while the pharmacists were filling prescriptions and giving general advice as they have a duty to do .... Since the pharmacist has a duty beyond merely following the doctor's instructions robotically, Walgreens' pharmacists exercised their due diligence by informing the customers, as necessary, of any relevant information regarding the prescribing physician, Dr. Lefrock.

The pharmacists made the statements in the proper location and manner since they rendered the advice to the customers while the customers were seeking advice regarding treatments and seeking to fill prescriptions. Also, the statements were made in the proper manner since the statements were limited in scope to the specific prescriptions being filled and were not mere generalizations. (9)

While the court ultimately found that the pharmacists' statements were protected by privilege, which the prescribing physician plaintiff had not sufficiently overcome to withstand summary judgment, in a similar case with a different set of facts, another prescribing physician plaintiff may be able to introduce enough evidence to withstand summary judgment and even establish with a jury actual malice or intent to injure. It is this potential exposure of pharmacists to liability for defamation that must be further addressed under Florida law through the invocation of an absolute immunity to defamation in a fashion akin to the "litigation privilege" bestowed upon participants involved in formal legal proceedings.

The scope of the absolute litigation privilege has recently been narrowed by the Florida Supreme Court in a split decision. Following the opinion in DelMonico v. Traynor, 116 So. 3d 1205 (Fla. 2013), judges, counsel, parties, and witnesses are still absolutely exempted from liability for defamation occurring during the course of judicial proceedings (trial, depositions, discovery responses, pleadings, and motions), regardless of how false or malicious the statements may be, as long as the statements bear some relation to or connection with the subject of inquiry. However, based upon the holding in Traynor, the absolute litigation privilege does not "sweep so broadly as to immunize an attorney from liability for alleged defamatory statements the attorney makes during ex parte, out-of-court questioning of a potential, nonparty witness in the course of investigating a pending lawsuit." (10) Instead, in those situations, only a qualified privilege applies, provided the alleged defamatory statements are related to the lawsuit, and no privilege at all would apply if there were no connection or relation to the lawsuit. (11)

"The litigation privilege [] is a common law construct derived from a court's inherent authority to effectuate the judicial process by promoting zealous advocacy.... The litigation privilege was designed to promote effective advocacy by minimizing the threat of legal backlash from actions taken during judicial proceedings." (12) The Florida Supreme Court explained the origin of the litigation privilege in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994), stating:

This absolute immunity resulted from the balancing of two competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public interest to a free and full disclosure of facts in the conduct of judicial proceedings. In determining that the public interest of disclosure outweighs an individual's right to an unimpaired reputation, courts have noted that participants in judicial proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim. Although the immunity afforded to defamatory statements may indeed bar recovery for bona fide injuries, the chilling effect on free testimony would seriously hamper the adversary system if absolute immunity were not provided.

Although the scheme that enabled Florida common law to construct the absolute litigation privilege is not as easily adaptable to constructing an absolute healthcare privilege, given the limitations on the courts' inherent authority, there is precedent for judicially created absolute immunity from defamation suits in other contexts. (13) The Florida Supreme Court has recognized:

the necessity that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interests. To accomplish this, it is necessary for them to be protected not only from civil liability, but also from the danger of even an unsuccessful civil action. To this end, it is necessary that the propriety of their conduct not be inquired into indirectly by either court or jury in civil proceedings brought against them for misconduct in their position. (14)

The time has come for Florida courts to recognize that a pharmacist acting within the ordinary course and scope of practice falls within such class of persons entitled to absolute immunity. The public interest of free and full disclosure of facts in the conduct of judicial proceedings is certainly no more vital than the free and full disclosure of facts in the rendering of medical care by physicians and pharmacists. In fact, the American Medical Association's Principles of Medical Ethics provide that "[a] physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities." (15) The American Pharmacists Association's Code of Ethics (16) similarly requires honesty, providing, in pertinent part, as follows:

Considering the patient-pharmacist relationship as a covenant means that a pharmacist has moral obligations in response to the gift of trust received from society. In return for this gift, a pharmacist promises to help individuals achieve optimum benefit from their medications, to be committed to their welfare, and to maintain their trust.

A pharmacist has a duty to tell the truth and to act with conviction of conscience....

The primary obligation of a pharmacist is to individual patients. However, the obligations of a pharmacist may at times extend beyond the individual to the community and society. In these situations, the pharmacist recognizes the responsibilities that accompany these obligations and acts accordingly.

Analogous to the Florida Supreme Court's rationale in Levin, (17) the public interest of frank and complete disclosure in the healthcare context outweighs an individual's right to an unimpaired reputation. This rationale is especially compelling in this day and age with the proliferation of pill mills and increasing responsibility and legal duties placed upon pharmacists as a primary line of defense. Without removing the fear of potential civil liability as to anything said or written while counseling a customer at a pharmacy counter, pharmacists can be placed in an untenable position. Florida law is becoming more and more clear that a pharmacist cannot simply robotically fill a narcotic prescription as strictly directed by the prescribing physician. (18) However, customers who have their prescriptions refused often become frustrated and disgruntled and persistently inquire of the pharmacist as to the reasons for the refusal to fill the prescription. As pharmacists are bound by their code of ethics to tell the truth and to act with conviction of conscience, if there is any reason to believe that a particular prescription or particular prescribing physician is suspicious, the public interest is better served with unrestrained disclosure rather than half-truths, misinformation, or an outright refusal to provide any explanation or insight into the pharmacist's thought process.

The Lefrock case took an important first step. While the Florida state courts should, at a minimum, adopt Lefrock's rationale, they should also take the next logical step and align absolute privileges across the legal and medical professions, even if the means to achieve such end slightly vary. At the same time, the legislature should not wait for the common law to evolve, as history has proven that to be a slow course. Instead, the legislature should intercede and enact statutory immunity for pharmacists similar to what it has already done in other contexts. (19) Regardless of which governmental branch reaches the finish line first, the goal should be the same. If a pharmacist publishes defamatory statements in the ordinary course and scope of the pharmacist's practice that bears some connection or relation to the filling of a particular prescription of a particular patient, there should be no legal recourse against the pharmacist due to the invocation of an absolute privilege. Indeed, the American Pharmacists Association dictates that a pharmacist's primary obligation is to individual patients. However, in staying consistent with Traynor, the absolute privilege need not sweep so broadly as to immunize a pharmacist from liability for alleged defamatory statements made about a prescribing physician generally without regard to the filling of a particular prescription for a particular patient. Instead, in those situations, only a qualified privilege should apply, provided the alleged defamatory statements bear some connection to the ordinary course and scope of the pharmacist's practice. This rationale also comports with the American Pharmacists Association's dictate that the obligations of a pharmacist may at times extend beyond the individual to the community and society. Finally, if there is no connection or relation between a pharmacist's alleged defamatory statements and the pharmacist's ordinary course and scope of the pharmacist's practice, then no privilege at all would apply. Of course, independent of and in addition to any civil liability exposure for defamation, a pharmacist is always subject to the disciplinary arm of the pharmacy profession. (20) With the implementation of this layered insulation for pharmacists, the correct and far more appropriate balance can be reached between the competing interests of the public interest of disclosure versus an individual's right to an unimpaired reputation.

(1) Florida Office of the Attorney General Pam Bondi, Florida's Prescription Drug Diversion and Abuse Roadmap 2012-2015, http://myfloridalegal.com/ pages.nsf/Main/AA7AAF5CAA22638D8525791B006A30C8.

(2) Dee, 878 So. 2d at 427.

(3) See Fla. Stat. [section]465.003(6); Fla. Admin. Code R. 64B16-27.300, 64B16-27.820.

(4) Powers, 903 So. 2d at 278.

(5) NITV, L.L.C. v. Baker, 61 So. 3d 1249, 1254 (Fla. 4th DCA 2011) (citing Campbell v. Jacksonville Kennel Club, 66 So. 2d 495, 497 (Fla. 1953); Wolfson v. Kirk, 273 So. 2d 774, 777 (Fla. 4th DCA 1973)).

(6) Lawnwood Medical Center, Inc. v. Sadow, 43 So. 3d 710, 729 (Fla. 4th DCA 2010). See Lundquist v. Alewine, 397 So. 2d 1148, 1150 (Fla. 5th DCA 1981) (where defamation is actionable per se, punitive damages may be awarded even though the amount of actual damages is neither found nor shown) (quoting Saunders Hardware Five and Ten v. Low, 307 So. 2d 893, 894 (Fla. 3d DCA 1975)).

(7) American Airlines, Inc. v. Geddes, 960 So. 2d 830, 833 (Fla. 3d DCA 2007). See John Hancock Mut. Life Ins. Co. v. Zalay, 581 So. 2d 178, 180 (Fla. 2d DCA 1991) (in order to eliminate the presumption of good faith, the plaintiff must show that the defendant's statements were made with the primary motive of injuring the plaintiff).

(8) Restatement (Second) of Torts [section]595, comms. e, f (1977).

(9) Lefrock v. Walgreens Co., 2015 WL 226034 at *2-3.

(10) Id. at 1218.

(11) Id. at 1218-19.

(12) LatAm Investments, LLC v. Holland & Knight, LLP, 88 So. 3d 240, 244 (Fla. 3d DCA 2011).

(13) See Stephens v. Geoghegan, 702 So. 2d 517, 522 (Fla. 2d DCA 1997) ("Public officials who make statements within the scope of their duties are absolutely immune from suit for defamation."); Hauser v. Urchisin, 231 So. 2d 6, 8 (Fla. 1970) ("The public interest requires that statements made by officials of all branches of government in connection with their official duties be absolutely privileged.").

(14) Fridovich v. Fridovich, 598 So. 2d 65, 68 (Fla. 1992) (quoting Restatement (Second) of Torts [section]584 at 243) (emphasis omitted).

(15) American Medical Association, Principles of Medical Ethics, available at http://www.ama-assn.org/ama/pub/ physician-resources/medical-ethics/codemedical-ethics/principles-medical-ethics. page.

(16) American Pharmacists Association, Code of Ethics, available at http://www. pharmacist.com/code-ethics.

(17) Levin, 639 So. 2d at 608.

(18) Oleckna, 162 So. 3d at 181-82.

(19) See Fla. Stat. [section]768.095 ("An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under [ch.] 760.").

(20) The Supreme Court's observation in Coralluzzo v. Fass, 450 So. 2d 858, 859 (Fla. 1984) (no longer good for at least one point of law) is compelling wherein it was noted that "[w]hether [a pharmacist] has violated the ethical standards of his profession is a matter to be addressed by the profession itself," rather than by the courts.

Illustration by Barbara Kelley

Jonathon S. Miller litigates all variety of tort claims in state and federal court, and also focuses on commercial litigation, construction law, aviation law, real estate, condominium disputes, and appellate practice. He graduated from UCLA and earned his J.D., cum laude, from Florida State University College of Law.
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Author:Miller, Jonathon S.
Publication:Florida Bar Journal
Date:Feb 1, 2016
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