Handling Prior Authorization Requests: Revisited on Appeal

ISSUE OF THE CASE

When a trial court judge rules that a claim of negligence against a pharmacy should be dismissed and the plaintiffs appeal, what will the state’s highest court decide is the appropriate outcome?

FACTS OF THE CASE

Here is an abbreviated discussion of the facts of this case as it was handled at the trial court level when it appeared in the August 2018 issue of Pharmacy Times (“Does a Pharmacy Have Liability Related to Handling Prior Authorization Requests?”)

A patient in a New England state had been started on topiramate (Topamax) for a seizure disorder after she experienced the first episode. Upon presenting her second prescription for the medication at the pharmacy, the pharmacist informed her that her health insurance underwriter would not cover the cost of additional prescriptions for that medication without prior authorization (PA) documentation from her prescribing physician. The patient was directed to contact the prescriber to pursue that so the insurer’s expectation related to coverage could be met.

When the patient suffered her second seizure, she presented a prescription at the same pharmacy and was told that the insurance company had denied coverage for the expense because it had not received the PA documentation. She was told that the pharmacy could not provide the medication at that time unless she paid for it in full. The patient made 4 additional attempts to have the medication dispensed, with the expense covered by the insurer, all of which came up short. The stepfather of the patient had contacted the prescriber’s office by telephone several times to discuss the need for PA and to secure that documentation. These attempts occurred after first being notified of the need for PA in July. At the end of October, the patient died after she experienced a third seizure.

A lawsuit was filed against the neurologist, the group practice that employed him, and the national pharmacy chain whose employees had declined the prescription without payment and who had discussed the need for PA with the patient and her relatives. Inclusion of the pharmacy in the lawsuit was based on the fact that the computer software used by the chain permitted the pharmacist to send a courtesy facsimile to the prescriber when the health insurer declined coverage because PA had not been provided. The operating policies of the pharmacy chain did not require that step be taken, and the software did not maintain a record of such communications dispatched to the prescriber, nor did records reflect whether the communication had been received on the other end. The argument advanced by the plaintiff was that the pharmacists had told the family that they would send fax communica- tions and telephone the prescriber’s office to pursue the PA.

The chain moved for summary judgment of the claims. This means that no factual issues remain to necessitate a trial and the matter can be decided by the presiding judge. The trial court judge ruled in favor of the pharmacy chain, granting the motion and terminat- ing the proceedings. The relatives pursuing the matter on behalf of the deceased patient appealed that ruling to the state’s supreme court.

THE RULING

The state’s highest court ruled that there was a question of law related to the legal duty of the pharmacy chain and sent the matter back to the trial court.

THE COURT’S REASONING

The party that is unsuccessful at the trial court level can request that the proceedings and decision be reviewed on appeal. It must be able to point to a question of law for review by the appellate court, such as an error made by the judge during the trial court proceedings.

The view of the appellate court of the legal duty existing with this factual situation was that the chain “had a limited duty to take reasonable steps to notify both the patient and the prescribing physician of the need for prior authorization each time.” Accordingly, it reversed the trial court judge’s decision to grant summary judgment. However, while doing so, it placed some limits on the expectations applicable in this situation. The appellate court stated that the pharmacy chain’s duty “extended no further. The pharmacy was not required to follow up on its own or ensure that the prescribing physician in fact received the notice or completed the prior authorization form.”

This decision provides insight into the law in Massachusetts, as well as a perspective on how state appellate courts are viewing the evolving role of pharmacies and pharmacists. It also highlights the continuing importance of maintaining documentation of one’s decisions and actions.

Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.