Rx & The Law
The Pharmacy's Duty to Protect Confidentiality
By Donald McGuire,
R.Ph., J.D.
Professional Claims Attorney
Pharmacists Mutual Insurance Company
When can a pharmacist release
a patient’s prescription records? This is
a common question which needs to be correctly answered. Failure to do so could
result in an action for damages against the pharmacy, as Rite Aid discovered
in Washburn v. Rite Aid Corp.1, a Rhode Island case.
The
Washburns were in the process of a contested divorce when Mr. Washburn's
attorney subpoenaed Mrs. Washburn's prescription records from Rite
Aid. The
subpoena requested a representative from Rite Aid bring to court the records
for both
Mr. and Mrs. Washburn for the last five years. The clear language of this
type of subpoena in Rhode Island requires the pharmacy representative
to bring the
requested records to court and then release them as ordered by the court.
However, Rite Aid's usual practice was followed in this case.
Unfortunately,
many pharmacies would handle a subpoena in the same way Rite Aid
did. Rather than bring the requested records to the deposition
as stated
in the
subpoena, copies of the records were mailed directly to Mr. Washburn's
attorney. There was no release received from the wife or her attorney
for this action.
The Court concluded that this was an unauthorized
release of confidential records. In its decision the Court said:
" Indeed, the Confidentiality Act presumes that each and
every one of these records is confidential and should not be disclosed
except pursuant to valid legal process.
Moreover, mere receipt of a valid subpoena does not negate this
privilege; much less does it justify publication of the records
to the person
subpoenaing them
or to anyone else."2
The pharmacist and the pharmacy must know
when it is proper to release prescription records. The safest way
is to have a valid, written authorization
from the
patient whose records are being requested. Rite Aid could have requested
such a written
authorization from Mr. Washburn's attorney, or from the wife’s
attorney, but did neither. Another proper method would be to turn
over the requested records
when ordered to do so by a court order. As this case shows, a subpoena
is not a court order. Rite Aid did not act under court order nor
pursuant to a valid
release, and as a result, could be held liable for damages resulting
from the improper release of confidential records.
There are some
situations, however, where it is proper, and even necessary, for
a pharmacist to disclose patient information. A pharmacist
may
release prescription
and health information to a patient's treating physician when the
information is necessary for the patient's medical care. For example,
a pharmacy
receives a call from the local emergency room. Mrs. Jones was just
brought in unconscious,
but a prescription vial with the pharmacy's label on it was found
in her pocket. The ER wants information on what medications the
pharmacy provides
to Mrs.
Jones. The pharmacy can legally provide this information to aid
the emergency physician
in treating Mrs. Jones.
It is important that everyone in the pharmacy
understands that prescription records are confidential and understands
the requirements
for each
employee to maintain
that confidentiality. One way to highlight this is to have each
employee read, understand, and sign an "Understanding of
Confidentiality" statement.
All requests for prescription records should be forwarded to
the pharmacist or manager for handling. Requests should be reviewed
to insure that the request
is legally valid.
(Note: To request an "Understanding of
Confidentiality" statement,
pharmacists may call Pharmacists Mutual Insurance Company at
(800) 247-5930 (ext. 26). This "Understanding of Confidentiality" statement
is not designed as a legal document, but as a method of emphasizing
to each pharmacy employee
the importance of confidentiality. Pharmacists should remember
the law of confidentiality and release differs with each state.
All pharmacists are urged to consult with
an attorney in their state prior to using any form.)
1 Christine Washburn v. Rite Aid Corp.,
d/b/a Rite Aide Pharmacies, 695 A.2d 495 (R. I. 1997)
2 Washburn, 695 A.2d at 500 This article discusses general principles of law
and risk management. It is not intended as legal advice. Pharmacists should
consult their own attorneys
and
insurance companies for specific advice. Pharmacists should be familiar with
the policies and procedures of their employers and insurance companies, and
act accordingly. |