Rx & The Law

Think Before you Speak

by Don R. McGuire, Jr., R.Ph., J.D.
General Counsel
Pharmacists Mutual Insurance Company

Pat the pharmacist had been having a stressful afternoon in the pharmacy when Mrs. Green came in with 3 prescriptions from Dr. White in the next town over.  Pat looked over the 3 prescriptions and saw that they were all controlled substances and all were in high dosages.

“Mrs. Green, I can’t believe that you continue to see that doddering old fool, Dr. White!  When are you going to start seeing a real doctor?  If you keep going to Dr. White, he is going to kill you!  Our store refuses to fill any prescriptions for any of his patients anymore.” 

Two weeks later, the county sheriff served Pat with a lawsuit.  Dr. White sued Pat for slander since Pat’s statement was made verbally to Dr. White’s patient in front of other customers in the store.

Defamation is the publication of anything injurious to the good name or reputation of another, or which tends to bring him into disrepute.1  Oral defamation is called slander, while printed defamation is called libel.  The purpose of libel and slander laws is to protect innocent individuals from the harmful effects of false, disparaging remarks about their reputation or their professional abilities.  The defamatory statement must also be published, that is, it must be made to someone other than the person who is allegedly defamed.  It should be pointed out that the truth is a defense to slander and libel.  In other words, if you speak or write truthfully about a person, it is not slanderous or libelous, even if it is damaging to their reputation. 

However, proving the truthfulness of a remark is not always easy.  Objective evidence, such as a criminal conviction or a sanction by a licensing board, is a good way to prove the truthfulness of a remark.  Look back at the statements made by Pat.  How many of those statements are factual and objectively true?  Maybe only the last one.  But how is Pat going to prove it?  In a law suit, Pat will have to list the names of the customers whose prescriptions were declined at the pharmacy.  The store will have to list them as witnesses and then possibly call those persons as witnesses at a trial.  Pat will have to articulate a reason why the prescriptions were not filled.  Pat will also have to have an expert witness to state that this is the standard and practice of a pharmacist.  It would aid in his Pat’s defense if other pharmacies in the area were not filling Dr. White’s prescriptions for the same reason. 

Without objective evidence for the court to act upon, the question of truthfulness goes to the jury.  If the jury decides that the statements were truthful, then Pat wins.  If not, then the jury decides if they were defamatory.  If they were, then the jury decides the amount of damages to award Dr. White.

By the time that Pat gets this far into the litigation process, Pat will have invested a significant amount of time and money.  Could Pat obtain insurance coverage to protect against these types of situations?  Generally yes.  Many commercial policies contain coverage for personal injury and one of the covered injuries under personal injury is typically slander or libel.  Care must be taken, however, because certain exclusions will apply.  One common exclusion is for personal injury arising from publication of statements that the insured knew were false when they were made.  Personal injury arising from a criminal act committed by the insured is also excluded under many policies.  Insurance coverage won’t protect someone who intentionally defames another.

What is the best course of action for Pat?  The best recommendation is to think before speaking.  Know your audience.  Know your content.  Is it factual or inflammatory?

“Mrs. Green, I’m not going to fill these prescriptions because, in my professional judgment, I believe that they may be detrimental to your health.”

This statement is certainly less inflammatory and may not be actionable at all.  But do not let fear prevent you from intervening.  Pharmacists still need to ensure that patients are receiving safe, effective drug therapy.  In this last example, Pat has still performed the valuable DUR and gate keeping functions without defaming Dr. White’s ability to practice medicine.  

1. Barron’s Law Dictionary, Second Edition, Edited by Steven H. Gifis, Barron’s Educational Series, Inc., 1984.