Dealing with a Suspected Forgery Goes off Track

Issue of the Case

This case from a southeastern statepresented the issue of whether probablecause to make an arrest existed in a factualsituation arising from a prescriptionissued by an emergency departmentphysician bearing a notation that refillswere authorized. The roles of the pharmacistsin the development of the casebear particular note.

Facts of the Case

A male patient visited an emergencydepartment physician, receiving a prescriptionfor a common narcotic-containingmedication. Reporting to the prescriberthat he was about to leave onvacation, the patient requested that arefill be authorized in case he needed theadditional supply. The physician indicatedthe authorization of one refill on the faceof the prescription but neglected to notethat additional fact in the patient's chart.Such a turn of events can reasonablyoccur in a busy emergency departmentsituation.

The patient's wife presented the prescriptionat a pharmacy in the morning,where the pharmacist on duty dispensedthe medication. When a different pharmaciston the evening shift reviewed theprescriptions dispensed that day, shenoted that the prescription bore a notationof one authorized refill, somethingrarely done by emergency room physicians.She also thought that a differentpen had been used to make the refillauthorization, and that the handwritingon the refill authorization looked inconsistentwith that used for the body of theprescription.

The evening pharmacist then calledthe emergency department and askedthat someone pull the charted documentationof the patient's visit. A nurse whoknew nothing about the patient's situationretrieved the written record andnoted that no notation about an authorizedrefill appeared in the chart. Hearingthat, the evening pharmacist alerted thelocal police to the possible existence ofan incident involving prescription fraudto obtain a controlled substance. Thepolice officer went to the pharmacy,examined the prescription, and, withoutany further investigation, went to thepatient's home and arrested him.

After everything got sorted out toestablish that there indeed had been noprescription fraud, the patient and hiswife sued the city, the employer of thepolice officer, for false arrest. Following ajury trial on that claim, the verdict andjudgment were awarded to the plaintiffsin the amount of $45,000, with 90% ofthat liability being directed at the citygovernment. The city appealed that decision,claiming that the arrest was legitimatebecause it was based on sufficientprobable cause.

The Court's Ruling

The appellate court ruled that thepolice officer had in fact not conducted areasonable investigation. Because ofthat, the officer did not have probablecause to arrest the patient, resulting inthe contested arrest being viewed as a"false arrest" by the court.

The Court's Reasoning

Specifically, the court found that theofficer's actions came up short in a numberof ways—(1) he did not contact theprescriber at the emergency departmentto verify the prescription, (2) he did notspeak with the morning pharmacistwho had actually dispensed the prescriptionto find out who had actuallypresented the prescription, and (3) hedid not talk to a nurse at the emergencydepartment who had actuallybeen involved in treating the patient.Consequently, the award of damagesagainst the city in favor of the plaintiffswas confirmed on appeal.

This author is personally familiarwith a very similar case in a southwesternstate, where failure to diligentlyinvestigate a suspected altered prescriptionform authorizing the dispensingof a controlled substance emanatingfrom an emergency departmentphysician led to a very substantial out-of-court settlement. In that case, theemergency department physician decidedjust before the patient departedto increase the quantity of medicationprescribed, picking up a different penwith a slightly different ink color toalter the quantity. The pharmacist whoreceived the prescription from thepatient's daughter for dispensingcalled the emergency department,where someone looked in the chartand saw a notation about the originalquantity, not the increased amount,which the prescriber had neglected tonote. The elderly male patient wasdetained for aggressive questioningovernight by the local police, and it wasnot discovered until "booking" time thenext morning that he could neitherread nor write. He was incapable ofhaving made the change alleged.Leveling allegations of prescriptionfraud that bring law enforcement officialsinto the picture is a very seriousmatter, and extremely thorough investigationwith no supposition must bethe rule of the day.

Dr. Fink is professor of pharmacylaw and policy at theUniversity of KentuckyCollege of Pharmacy,Lexington.