Pharmacy Technicians' Defamatory Comments About Local Physician

ISSUE OF THE CASE

When pharmacy technicians employed at several locations of a national pharmacy chain make derogatory comments about a local physician, are those comments to be viewed as defamation or as speech protected by a “qualified privilege?”

FACTS OF THE CASE

This case arose in a midwestern state when a physician left a rehabilitation practice, and launched his own practice focused on pain management. There was no indication of why he left. Patients receiving care from him presented prescriptions for controlled substances at a number of pharmacies in the area and heard comments from pharmacy technicians such as:

• "We no longer fill prescriptions from this prescriber because he has been to jail and is a bad doctor.”
• “His license has been suspended or revoked.”
• “He is under investigation by the Drug En- forcement Agency.”
• “Our pharmacy does not fill his prescriptions or prescriptions from any other pill mills.”
• “He has been arrested, and if he has not been, he soon will be. Therefore, find a new doctor.”

This information was reported back to the prescriber, who then sued the national pharmacy chain that employed those who made the comments.

Interestingly, the prescriber had a provision in the pain management contract that patients sign to receive treatment indicating that their prescriptions were limited to being dispensed at pharmacies operated by the national pharmacy chain being sued by him. To support the lawsuit, the physician was able to provide details about not only what was said but also where the statements were made, and supply the identity or a description of the person on the pharmacy staff who made the statement.

The physician filed the lawsuit against the national pharmacy chain in state court, and the chain had it removed to federal court because the parties to the dispute were in different states, an example of diversity jurisdiction. Both parties submitted motions to the judge for summary judgment, asking the judge to rule that no trial was needed and that their perspective on the matter should prevail.

THE RULING

The federal judge acknowledged that there were a number of issues to be addressed, and granted in part the motions from both sides, giving each a partial victory at this early stage ofthe proceedings.

THE COURT’S REASONING

The court began by reviewing the role of summary judgment, stating that “the role of summary judgment is to pierce the pleadings to assess the proof in order to see whether there is a genuine need for a trial.” Continuing, the judge said that “summary judgment is appropriate only when there exists ‘no genuine issue as to any material facts....’”

Two key issues surfaced in this case. The first related to the basic law of defamation. Although this was in federal court, that authority was expected to apply the law of the state where the case arose on this point. Defamation is making a false statement about a person that damages his or her reputation and causes that individual to be viewed with less esteem by the person who heard or read it. Slander is oral defamation, and libel is in written form.

But there is a special rule applicable when the defamatory statement falls under what is known as defamation per se. This situation exists when the false statement is so damaging that it will be considered automatically actionable. This rule applies when a statement imputes that the person (1) engaged in criminal conduct, (2) has a loathsome disease, (3) engaged in misconduct related to his or her trade, profession, office, or occupation, or (4) engaged in sexual misconduct. The plaintiff/physician argued that the false statements had related to misconduct in his profession or occupation.

The pharmacy chain argued that there had been no defamation because the statements were true, falsehood being an essential element of defamation. But the judge concluded that the pharmacy chain had submitted inadequate evidence about the truth of those statements, so its motion for summary judgment in its favor on the defamation claim was denied. The pharmacy chain also advanced an argument that the statements by the staff members were protected by “qualified privilege.” This rule means that comments made in good faith pursuant to a legal duty are protected and are not actionable. The chain argued that patients share a relationship with their pharmacists and seek advice and counseling from them. Patients would want to know whether their physician was engaged in illegal or unethical behavior.

The court agreed that qualified privilege operated that way but ruled that the doctrine was applicable to pharmacists, not to pharmacy technicians. In this instance, the comments at the center of the controversy were made by techs, who are excluded from providing certain advice or consultation with patients. Moreover, the court concluded that “the statements at issue were particularly disparaging, and went beyond the scope of the purposes for which qualified privilege exists.”

The judge addressed some of the issues through these summary judgment motions, but other questions remained to be addressed during trial.

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.