Pharmacy Law: Dismissed Diverting Pharmacist Goes on the Offensive

Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.

Issue of the Case

May a pharmacist who was dischargedafter being covertly filmed divertingcontrolled substances maintain a legalaction against the employer for defamation,defamation of business reputation,battery, and wanton and willfulmisconduct?

Facts of the Case

A pharmacist was employed at a chainpharmacy in a southeastern statewhen in late 2001 a variance was notedbetween the amount of controlled substancesordered and the quantity dispensed.The corporate loss preventiondepartment opened an investigationinto the matter, questioning everyonewho had access to the pharmacy area.Shortly thereafter the losses ceased,and the investigation was closed.

One year later this location againattracted the attention of the loss preventionspecialists when a bottle of C IImedication was determined to be missing.The investigation proceeded andcorporate officials approved installinga hidden camera in the pharmacy.Also, during the investigative period,the pharmacy supervisor and an investigatorconducted covert drug countsover 6 weeks.

The results of the investigationfound that nearly 3500 dosage unitswere missing, representing a wholesalevalue of nearly $3000, and the majorityof the missing tablets were of oneitem. Furthermore, one of the pharmacistswas working 92% of the time onthe dates when the medications wereordered and received; in addition, shewas observed in the parking lot of thepharmacy after hours on 2 occasionswith no apparent purpose for beingthere. Finally, one of the videotapesrevealed the pharmacist removing acontainer from a shelf bearing the tabletsin question, pouring them into herhand, and making a motion toward hermouth.

The investigator interviewed thepharmacist. She admitted she hadtaken and consumed some medicationswithout a prescription or payment "justa few times," according to the interviewer.Later the pharmacist deniedthat admission and refused repeatedrequests to provide a written statementto the investigator. She also allegedlymade an admission to the interventioncoordinator for the state board of pharmacy,but she denied that allegation.

Upon concluding the interview withthe investigator and again refusing tosign a written statement, the pharmacistrose to leave. She claimed theinvestigatorgrabbed her arm and shehad to pull away from him to leave thelocation. The investigator denied theaccusation.

The investigator then contactedthe local police and filed a reportregarding the losses at the pharmacy,including details of the investigationand what was missing. The videotapealso was provided to the local officials.The pharmacist was arrestedand charged with unauthorized distributionof narcotics. She entereda pretrial diversion program andagreed to submit to drug testing, sothe criminal charge was dismissed.

The pharmacist filed one lawsuitagainst her former employer allegingillegal bases for termination, but thecourt ruled in favor of the employer.In the second lawsuit, the pharmacistadvanced 4 new legal argumentsnot included in the first litigation. Thetrial court judge granted the employer'smotion for summary judgment, withouta trial. The pharmacist thought thetrial court judge had erred with thatruling and appealed to the US Court ofAppeals.

The Court's Ruling

The higher court agreed with the lowertrial court that summary judgment infavor of the employer was the appropriatedisposition of the matter.

The Court's Reasoning

The appellate court ruled that theemployer was insulated from the defamationcharges by a state statute thatcreated a legal privilege for someoneacting in good faith when filing a lossreport with the police. This is a ruleencountered in many jurisdictionsto remove any hindrance to aidinglaw enforcement officials. The courtreviewed all the evidence from theinternal investigation compiled by thecorporate loss prevention specialistsand concluded that all of it was directlyrelevant to the loss being reportedto law enforcement authorities. Also,the information had been submitteddirectly to the police officers, so therewas no opportunity for those outsidelaw enforcement to have access.

Moreover, the battery claim in herlawsuit was based on the allegationthat the investigator had restrained herfrom leaving the interview by an offensivetouching. The lower court hadruled that the plaintiff had abandonedthat claim. The employer had advancedarguments regarding why that elementof the case should be the subject ofsummary judgment in its favor by thejudge, and the plaintiff did not addressthat issue, thereby abandoning it.