Mass. Walgreen’s not liable for failure to refill prescription 

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BOSTON – A Walgreen’s pharmacy that declined to refill an epileptic woman’s prescription for anti-seizure medication because it lacked prior authorization from her physician could not be held liable for her death from a subsequent seizure, a Superior Court judge has decided.

According to the family of Yarushka Rivera, Walgreen’s told them it would fax Rivera’s doctor and call his office about the required prior authorization, though it was unclear whether the pharmacy followed up. Meanwhile, the family’s efforts to contact the physician’s office allegedly were unsuccessful.

In a wrongful-death suit brought on behalf of Rivera’s estate, her mother argued that when Walgreen’s told the family that it would contact the doctor, it voluntarily assumed a duty to ensure Rivera received her prescription.

Judge Dennis J. Curran did not agree.

“Merely telling Ms. Rivera and her family that it would contact (her doctor) does not create a legal duty because Walgreen’s pharmacists expressly instructed her and her family to contact (the physician themselves), which they did, apparently to no avail,” Curran said, denying the plaintiff’s motion to reconsider his earlier summary judgment in Walgreen’s favor. “As a result, the plaintiff has not demonstrated that she will be able to prove at trial that Walgreen’s offer to contact (the doctor) would reduce the risk of harm to Ms. Rivera.”

Clear evidence

Thomas M. Greene, counsel for the plaintiff, said the evidence was clear that Walgreen’s voluntarily assumed the duty to notify the prescribing physician, Andreas P. Schoeck, that prior authorization was required.

“Discharging that duty was not onerous; it was Walgreen’s routine practice,” Greene said, noting that his client is considering an appeal. “It was as simple as pressing a single computer key that would have transmitted a fax notice with all the necessary information to the treating physician.”

In fact, the Boston lawyer said, it is accepted practice in Massachusetts for pharmacies to notify physicians when prior authorization is required.

“Physicians rely on their professional colleagues to provide them with the necessary information, as opposed to their patients, many of whom do not understand the authorization process,” he said.

Walgreen’s attorney, Bruce H. Murray of Woburn, had a different view.

“What the plaintiff was asking for would have placed an unreasonable burden on pharmacists, in that pharmacists are limited in the information they have in terms of a patient’s health,” Murray said. “They certainly don’t have all the information a doctor has. They don’t get to choose what medications are prescribed or how. …Essentially, a pharmacist’s role is to fill a prescription as written when it’s valid and satisfies all the requirements, while providing certain warnings depending on the situation.”

And with respect to pre-authorizations in particular, a pharmacist does not know whether the lack of pre-authorization is because the doctor has changed the treatment plan, because the doctor has switched to an approach that does not involve medication or because the patient has switched pharmacies or doctors.

“All they know is that the prescription hasn’t been approved,” Murray said. “It would be unfair to require pharmacists to go and inquire why. And you’d be running into issues regarding privacy rights.”

Elizabeth N. Mulvey of Boston, who represents plaintiffs in medical-malpractice cases, said the decision makes sense.

“It’s not so much that (Walgreen’s) didn’t assume a duty, but that there was no reliance,” she said. “It wasn’t completely clear on the facts, but it looks like the pharmacy said they would (contact) the doctor, but the family was also trying to contact the doctor as well. Had the pharmacy said, ‘Don’t worry about it, we’ll take care of it,’ and the people — in reliance — had done nothing, you might have seen the opposite result.”

But Cambridge med-mal defense attorney Martin C. Foster said there appeared to be a legitimate argument that the family relied on the pharmacy’s offer to contact the doctor about the prior authorization.

“In some respects, this is the equivalent of a ‘curbside consult,’” Foster said. “The pharmacist, while not giving medical advice, has promised to take an action with potential medical consequences. It’s reasonable for the patient to rely on that because the patient knows the pharmacy, which wants to sell him medicine, has an economic interest in fulfilling its promise.”

Lack of pre-authorization

Rivera came under Schoeck’s care in May 2009 after suffering a seizure. The doctor diagnosed her with a seizure disorder and prescribed Topamax.

On June 13, 2009, Rivera filled her prescription at a Walgreen’s store in Lawrence.

When she tried to get it refilled two weeks later, a pharmacist on duty allegedly told her that her insurer, MassHealth, would not cover any further Topamax prescriptions without prior authorization from Schoeck and that she should contact him to obtain it.

Rivera had a second seizure Sept. 2, and a week later Walgreens told her family that MassHealth had denied coverage for lack of prior authorization and thus it could not fill her prescription at that time unless the family paid for it.

Rivera and her family tried to get the prescription refilled four additional times that fall.

Meanwhile, the pharmacy’s computer system apparently permitted the pharmacist to send a courtesy fax to the prescribing physician whenever MassHealth denied coverage for lack of prior authorization. Pharmacists were not required to send the faxes, nor did Walgreen’s maintain a record of such faxes or monitor whether prescribing physicians received them.

Nonetheless, according to the family members, Walgreen’s pharmacists told them they would send Schoeck a fax and call his office about the prior authorization. It was unclear whether the pharmacy ever followed through. In the meantime, Rivera’s stepfather allegedly called Schoeck’s office several times between July and October 2009 to obtain the prior authorization.

The office apparently did not respond.

The prescription was never refilled, and Rivera died on Oct. 29, 2009, after suffering a third seizure.

On behalf of Rivera’s estate, her mother, Carmen Correa, brought a med-mal claim in Superior Court against Schoeck and a wrongful-death claim against Walgreen’s.

Curran granted summary judgment to Walgreen’s in June 2016, and Correa moved for reconsideration.