Is There a Legal Duty to Provide Medication without Payment?

Joseph L. Fink III, BSPharm, JD

ISSUE OF THE CASE

A patient is discharged from a hospital and told that a certain pharmacy would have the medication he needs because it is unavailable at the hospital. Then the patient is told that dispensing the pharmaceutical will not be covered by insurance. Can a lawsuit be maintained for failure to supply the medication?



FACTS OF THE CASE

A driver was involved in an auto accident while on the job in a southern state. His injuries were substantial, including a broken leg, resulting in hospitalization and multiple surgical procedures. Because he was “on the clock” at the time of the injury, coverage for health care expenses was to be provided by his employer’s workers compensation coverage.



It was determined that he would need anticoagulation treatment following discharge in order to prevent further injury. Accordingly, he was prescribed warfarin and enoxaparin; however, the hospital pharmacy was unable to supply either medication. Contact was made with a local chain pharmacy, and the patient’s caregiver was told that the medications were available there.



When the patient’s caregiver went to the pharmacy, she was told there was a problem with the medications being approved for coverage by the workers compensation underwriter. However, she was told the prescriptions would be available shortly. The other discharge medications were obtained at the same pharmacy, but, in the words of the complaint filed to launch the lawsuit, the pharmacy “refused to fill the anticoagulant prescriptions” and the insurance company, also named in the lawsuit, refused to pay for them. The patient never received the 2 anticoagulants, and it was alleged that he “subsequently died from complications due to not taking those medications, several days later.”



The complaint filed to initiate the lawsuit alleged “negligent performance of an assumed duty” by the pharmacy and the insurance company. Both defendant firms filed motions to have the lawsuit dismissed.



THE COURT’S RULING

Motions to dismiss the lawsuit were granted with regard to both parties—the pharmacy and the insurance company.



THE COURT’S REASONING

The court began its review of the matter by pointing out that in order to survive, a motion to dismiss the allegations made by the plaintiff must “state a claim to relief that is plausible on its face.” It summarized the argument of the pharmacy chain, as there is “no duty on the part of a retail store to give customers things for free” and that it “certainly would have sold the medication to the caregiver if she had paid for it.” The pharmacy chain advanced its interpretation of the plaintiff’s claim as being that it “should be held responsible for the patient’s death because it did not give the caregiver the medications she wanted, even though she did not pay for them.”



To establish that negligence occurred, it must be shown that the defendant owed the plaintiff a legal duty and then breached that duty. The pharmacy chain contended that it had no legal duty to provide the medication, unless it was paid for, which the amended complaint filed by the plaintiff conceded did not occur.



The plaintiff advanced a legal theory known as “assumed duty.” This is the notion that if a defendant assumes to act, although gratuitously, he may become subject to the legal duty to act carefully, if he acts at all. The argument ran this way: the pharmacy chain assumed a duty to act when its employee told the caregiver or the person who called from the hospital that it would provide the anticoagulants. That communication, the argument ran, induced the hospital to discharge the patient, leading to his demise when he went without the blood thinners. By refusing to provide the medications when no one would pay for them, the plaintiff theorized, the pharmacy chain assumed the legal duty.



Returning to the notion that the plaintiff must “state a claim to relief that is plausible on its face,” the court concluded that there was no such plausible claim advanced by the plaintiff/caregiver. Nowhere was a claim made that the representative of the pharmacy told anyone the medication would be provided for free, nor was the pharmacy under any legal obligation to make it available without payment. This court pointed to a decision by another federal court on the West Coast that concluded that “nobody could seriously question a refusal to fill a prescription because the customer did not pay for it.” A community pharmacy, such as the one in this case, “understandably requires payment for medications it dispenses.”



Dr. Fink is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.

