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.