Recent Legal Cases of 2001: A Heads-Up for Pharmacists

Article excerpt

In the Continuing Education article for Drug Topics, March 20, 2000, "Recent legal cases [of 1999]: A Heads-up for Pharmacists," several topics were discussed. These topics included negligence and the pharmacist's duty of care, product liability, employment issues, and patient confidentiality. Tw years later, many of these same issues once again found their way into the courts. While some of the topics in this article may appear similar, there are noteworthy differences.

The first case deals with the issue of whether or not a pharmacy used deceptive business practices when selling its prescription records. The second examines the Family Medical Leave Act from an employee and employer perspective. Next, the voluntary undertaking doctrine will be discussed as it applies to the retail pharmacy setting. Finally, the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) will be highlighted. Several cases will illustrate these important laws by examining various forms of discrimination in the workplace. For each case, a chart of application principles (see Figures 1 through 4) will present some guidelines to help you put them into practice.

Confidentiality of Rx records

The issue of patient confidentiality is certainly not new to pharmacists. With greater frequency, pharmacists are placed in the position of determining where and to whom patient information should be disclosed. While many of the legal cases have focused on the potential liability of a pharmacist who improperly released a patient's records to an unauthorized individual or entity, the following case poses a slightly different issue by examining the sale of a pharmacy's prescription records.

* Anonymous v. CVS Corp. 188 Misc.2d 616; 728 N.Y.S.2d 333; 2001 N.Y. Misc. LEXIS 227 (Sup.Ct.2001)

When defendants Trio Drugs, a local pharmacy, and its pharmacist, Hinderstein, decided to cease doing business in 1999, defendant CVS purchased Trio Drugs' records. These records contained the pharmacy customers' prescription records and medical profiles identifying, among other health-related information, any known allergies, chronic diseases, and adverse drug reactions. As part of its "independent file buy program" (the File Buy Program), CVS acquired the customer files of approximately 350 independent pharmacies that ceased doing business in 1998 alone.

Diagnosed with HIV in 1986, and with AIDS in 1989, the plaintiff alleged that he selected Trio Drugs as his pharmacy based upon an expectation of privacy. For nearly 20 years, the plaintiff had patronized Trio Drugs, expecting it would keep all personal medical and prescription information confidential and not disclose it without his prior knowledge and consent. In his complaint, the plaintiff stated that it was only after Trio Drugs had ceased doing business that he and other customers of the pharmacy were informed that their prescription and medical profiles had been transferred to CVS. It follows that one issue in this case is whether a patient has the right to prior notice in order to be able to retain or transfer prescription information to a pharmacy other than the one purchasing the prescription records.

In seeking dismissal, the defendants argued that the prescription records and medical profiles, which by statute pharmacists are required to maintain for five years, were the property of the pharmacy. They further contended that customers have no right to reclaim those records when a pharmacy ceases doing business. If customers were allowed to keep these records, discontinuing pharmacies would fail to comply with the statutory five-year record-keeping requirement. Furthermore, the defendants asserted that no duty of confidentiality existed with the plaintiffs, and if one did in fact exist, no duty was breached by transferring the existing records to another licensed pharmacist or pharmacy.

The New York Supreme Court first examined the issue of whether a fiduciary duty of confidentiality actually existed between the parties. …