Pharmacy Law: Physician Sues CVS for Refusing to Fill His Prescriptions

The California Court of Appeals decided a case where a physician asked the court to issue an injunction against CVS to force the company to fill his patient’s prescriptions.

The physician, Kenneth Bradley, is a pain management specialist with 26 years in his own practice. His patients were typically from health maintenance organizations (HMOs)—the physician has referral relationships with about 30 HMOs. Most of the physician’s patients are people from minority groups who receive medical insurance from Medicare or Medi-Cal. Many of his patients receive prescriptions for controlled substances, and most of the patients were filling their prescriptions at local CVS pharmacies.

In 2018 and 2019, CVS contacted the physician about increases in his prescribing Norco, a hydrocodone. After Dr Bradley explained that he used Norco because it has “lower potential for overdose while still controlling pain,” CVS took no further action.

However, in April 2020, a CVS pharmacist told Dr Bradley that she would no longer fill his prescriptions unless he provided plans for his patients to taper off their opioid medications. The doctor explained his practice of using great caution in prescribing opioids but refused to comply with the pharmacist’s demand.

In May 2020, Dr Bradley was contacted by a CVS senior manager expressing concern that the doctor’s controlled substance prescribing was outside the normal range compared with other prescribers in the same specialty and geographic area. In fact, CVS noted that between March and May 2020, the doctor’s prescriptions for hydrocodone had increased from 10,000 to 50,000.

The physician explained that the spike in his controlled substance prescribing was because during COVID-19, he was the only person in his practice who was certified to conduct e-prescribing, so he was carrying the prescription load for the two other physicians in his office. CVS was not satisfied with his response, and in June 2020 informed the doctor that effective June 25, 2020, CVS would no longer fill prescriptions he wrote for controlled substances.

The doctor filed a complaint alleging civil rights violations, tortious interference, and unfair business dealings, and asked the court first for a temporary restraining order against CVS, and when that was denied, asked for an injunction against CVS.

Following a hearing, the trial court denied the doctor’s motion for an injunction and agreed with CVS’ argument that the court should defer to the Board of Pharmacy. Dr Bradley appealed, and the case went to the Court of Appeals.

Ultimately, the Court of Appeals sided with the trial court and held that the Board of Pharmacy had primary jurisdiction of his claim. The court noted that the doctrine of ‘primary jurisdiction’ allows courts to take advantage of administrative expertise, such as that possessed by the Board.

The court noted that, considering the national opioid problem, the trial court had “reasonably concluded that the Board has more experience in evaluating a pharmaceutical licensee’s responsibilities in this context…By virtue of its composition and its role, the Board has a unique ability to evaluate whether a decision not to fill prescriptions was justified by a pharmaceutical licensee’s ‘professional training and judgment.’ The Board also has the expertise to evaluate the scope of CVS’s obligation not to fill particular prescriptions under the corresponding responsibility rule.”

The court rejected Dr Bradley’s numerous arguments and pointed out that referral to the Board will not have any effect on the doctor’s right to a jury trial.

“A ruling from the Board will provide a benefit to the court in ruling on issues,” noted the court. “If jury issues remain, a jury trial may proceed following Board review,” wrote the court. It affirmed the lower court decision and stayed the current case to allow the physician to pursue a complaint with the Board of Pharmacy.

Takeaway

Matters related to prescribing are best decided by a state’s Board of Pharmacy, which has the most knowledge and experience on the subject.