The Commonwealth’s Supreme Court reviewed a new issue recently in a Massachusetts wrongful death law suit. The legal question was whether a pharmacy was required by law to notify the prescribing physician after the patient’s health insurer advises the pharmacy that it needs a “prior authorization form” filled out by the physician. The decedent was prescribed Topamax to treat her epilepsy. The medication controlled her life-threatening seizures. Her insurer paid for this prescription twice in the months before her nineteenth birthday, but refused to do so afterward because it did not have a prior authorization form for an insured who is older than eighteen. The woman’s family made multiple attempts to obtain the medication, but the pharmacy refused to fill it. The family could not afford the medication without insurance and the woman died from a fatal seizure that year.
The woman’s mother and executor brought an action for wrongful death and punitive damages against the pharmacy, her daughter’s neurologist, and the neurological practice. The mother testified at trial that the pharmacy repeatedly told her daughter and other family members the pharmacy would notify her doctor about the need for prior authorization, but the physician and his practice denied receiving notice. The trial court granted the pharmacy’s motion for the summary judgment on the legal basis that the pharmacy had no legal duty to the decedent to notify her doctor and the practice about the need for prior authorization.
Prior authorization was required by MassHealth to establish the medical effectiveness and necessity of the medicine. This was to ensure there were no other cost-effective options to use, or generic drugs. The form was two pages long and took less than ten minutes to complete. It provided information about the diagnosis, the prescribed medication, basic patient information ,the doctor’s information, and the prescriber’s signature. The form was accepted only by the prescribing physician. Pharmacies and patients were not allowed to complete the form. The insurer only told the pharmacy because it was the pharmacy that submitted the claim for coverage.
If the coverage was denied by the insurer due to the need for a prior authorization form, the pharmacy’s computer system sends an immediate alert to the pharmacist. No law or regulation requires the pharmacy to contact the physician’s office, but many pharmacies often send a fax to the prescribing physician with the patient’s information to alert them about the need for prior authorization. Sometimes this is followed up by a telephone call. During the time period of the law suit, there was no system in place to track the communication made by the pharmacy to the doctor’s office.
The family obtained a prescription right before the decedent’s 19th birthday, but was advised the prescription would not be covered by MassHealth without the prior authorization form. The pharmacist told the family to tell the daughter’s doctor about the need for the form. The mother testified that the pharmacy assured them they would notify the doctor by phone or fax of the need for the form, as that was customary policy. No evidence existed that the pharmacist notified the neurologist.
The decedent ran out of her medicine soon after. The decedent’s step-father spoke with the neurologist’s office seven times about the prior authorization form. The step-father asserted he made these calls to assist the pharmacist’s efforts since he and his family relied on the pharmacy to obtain the needed paperwork. The step-father also contacted the pharmacy, who then told him to contact the physician. The daughter had a seizure weeks after her 19th birthday and was given a prescription for Topamax in the emergency room. An attempt to fill the prescription was made again, and was denied due to lack of the prior authorization form. The pharmacy also promised to contact the physician about the form, but no evidence exists they did so. The pharmacy advised they could still get the medication filled, but the family would have had to pay $399.99 out of pocket. The family was unable to afford that amount. After two more seizures and several more attempts by the family and the decedent to communicate their need, the daughter died following a seizure.
In negligence actions, the injured must establish that the defendant failed to act according to its legal duty and caused measurable harm by doing so. The trial court did not believe a duty existed for the pharmacy in this suit, but the Supreme Court disagreed. Case law has defined legal duty to be on where, in general, reasonable persons would recognize it and agree it exists. The court determined the nature of the pharmacist-patient relationship has evolved to the point where a limited duty was created in this case between the pharmacy, the patient, and the doctor’s office. The court ruled that problems were foreseeable to the pharmacy as it knew of the need for prior authorization and the industry-wide customs and practices of handling authorization forms. The summary judgment for the pharmacy was reversed, and the estate was allowed to proceed with its wrongful death action.
The Massachusetts wrongful death attorneys at Karsner & Meehan have the litigation experience you need to assist you with your action. For a free, confidential consultation call our office today at 508-822-6600.
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