In the pill mill age, it's time Florida invokes a 'healthcare privilege' providing pharmacists layered insulation from defamation.

• Author: Miller, Jonathon S.

Any doctor or clinic that prescribes narcotics for nonmedical reasons or in excess of accepted standards of medical care in the community is colloquially known as a "pill mill." According to Florida's attorney general, Florida is a leading state in the proliferation of pill mills, resulting in seven Floridians dying every day and countless others throughout the nation from the abuse of controlled substances. (1) The Florida Legislature responded with an initiative to discourage improper prescribing of controlled substances by creating The Florida Prescription Drug Monitoring Program, known as E-FORCSE (Electronic Florida Online Reporting of Controlled Substance Evaluation Program). However, an unintended side effect of attacking the root problem through indirect means by focusing on the pharmacists who fill these prescriptions rather than the physicians who prescribe them is the creation of a practical dilemma for the pharmacists by having to choose between one evil or another: filling questionable prescriptions and exposing themselves to administrative discipline and liability exposure for any customer overdose, or telling the customers any well-founded but unconfirmed concerns about the practices of the prescribing physicians thereby exposing themselves to a defamation claim by the prescribing physicians. The Florida courts have started to respond to this quandary, but more is needed, including, perhaps, further relief from the legislature through enactment of a statutory privilege.

In McLeod v. WS. Merrell Co., Division of Richardson-Merrell, Inc., 174 So. 2d 736, 739 (Fla. 1965), the Florida Supreme Court first acknowledged that a cause of action for negligence might arise when a pharmacist does not use due and proper care in filling the prescription, although no indication was given at that time of which circumstances would give rise to a viable claim. The First District gave one example of a circumstance when a viable negligence claim could be pursued against a pharmacist in Dee v. Wal-Mart Stores, Inc., 878 So. 2d 426, 427 (Fla. 1st DCA 2004), when a pharmacist filled an undated prescription for a powerful painkiller that had to be taken on a particular drug regimen four months after the prescription had actually been written, resulting in toxic overexposure and death of the patient. The court held that "[w]hen a pharmacy fills a prescription which is unreasonable on its face, even though it is lawful as written, it may breach this duty of care." (2)

The next progression of a pharmacist's duty came from the Fourth District in Powers v. Thobani, 903 So. 2d 275 (Fla. 4th DCA 2005), after a patient died of an overdose of narcotic painkillers. The court noted the "strong policy basis to support a pharmacy's duty to warn customers of the risks inherent in filling certain repeated prescriptions" as well as the duties of Florida pharmacists pursuant to the Florida pharmaceutical regulatory statutes and administrative codes. (3) In so noting, the Fourth District held that the actions of two retail pharmacies in allegedly filling every prescription written for a patient, without question, which included numerous prescriptions for narcotics too close in time and within days of having filled previous prescriptions, might be sufficient to sustain negligence claims for failure to use due and proper care. (4) Most recently, in Oleckna v. Daytona Discount Pharmacy, 162 So. 3d 178, 181-82 (Fla. 5th DCA 2015), the Fifth District held:

A pharmacy owes a customer a duty of reasonable care. Pharmacists are required to exercise that degree of care that an ordinarily prudent pharmacist would under the same or similar circumstances ... [and] a pharmacist's duty to use due and proper care in filling a prescription extends beyond simply following the prescribing physician's directions. We refuse to interpret a pharmacist's duty to use "due and proper care in filling the prescription" as being satisfied by "robotic compliance" with the instructions of the prescribing physician. See Arrington v. Walgreen Co., 664 F. Supp. 2d 1230, 1232 (M.D. Fla. 2009) (holding that, under Florida law, customer's cause of action against pharmacy arising from pharmacist's alleged failure to warn customer that prescription contained substance to which customer was allergic when filling prescription was sufficient to plead that pharmacy had duty to use proper care in filling prescription beyond simply following prescribing physician's directions).

What becomes clear from the developing trend of Florida law is that pharmacists are being held more accountable for filling lawful prescriptions that are tantamount to the improper or excessive use of controlled substances. Stated otherwise, a pharmacist who robotically fills a prescription for a controlled substance written by a pill mill faces liability exposure. Presented with this reality, it is also becoming increasingly more common for a pharmacist to refuse to fill a questionable prescription, for a variety of reasons, including the nature of the prescription itself; the circumstances and appearance of the customer and the customer's prescription history; and the...