California court defers to Board of Pharmacy expertise

Abstract

Pharmacists sometimes get caught in the middle between prescribers who insist that their opioid prescriptions be honored, and regulations that require pharmacists to decline suspicious opioid prescriptions. Disputes between pharmacists and prescribers may lead to litigation based on alternative interpretations of pharmacy laws. A court in California recently ruled that the State Board of Pharmacy has primary jurisdiction to consider any such dispute prior to resolution of the dispute in a court of law. A pain management physician sued a pharmacy that declined to honor the physician's hydrocodone prescriptions. The physician's lawsuit sought an injunction that would force the pharmacy to honor his prescriptions. The physician based his legal argument on a state pharmacy law that says “a licensee shall not obstruct a patient in obtaining a prescription drug or device that has been legally prescribed or ordered for that patient.” The pharmacy opposed the injunction, citing another state law that recognizes a “pharmacist's responsibility to ensure that prescriptions for controlled substances are issued only for a legitimate medical purpose.” The trial court explained that a judicial order requiring the pharmacy to honor particular prescriptions “would involve judgments concerning the statutory obligations of pharmacists that the Board is both expected and equipped to resolve.” The trial court ruled that the physician should first take his complaint to the Board before pursuing his claim in court. The physician appealed this ruling. The appellate court first noted that the Board has the “background to evaluate the specific facts that are relevant to these issues.” The physician contended that the doses he prescribes “are not excessive,” and that “hydrocodone is the lowest potency pure µ-receptor opiate agonist available.” The court concluded that “the Board is better equipped than the courts to evaluate how such technical claims affect a pharmacy's statutory corresponding responsibility.” The appellate court then referred to “the context of a national opioid problem,” agreeing with the trial judge that “the Board has more experience in evaluating a pharmaceutical licensee's responsibilities in this context.” The court also noted the need for “regulatory uniformity” since pharmacy opioid prescription screening programs are likely to affect many prescribers. The court said, the “Board is well positioned to adopt a uniform approach to determining whether such programs—and implementation of them—are consistent with pharmacists’ professional obligations.” The court applied the “doctrine of primary jurisdiction” to the case. Under this doctrine, the issue is not whether courts are capable of adjudicating claims based on state laws, but whether those claims require the “resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” The court explained that referral of the physician's case to the Board will not have any effect on the physician's right to eventually proceed with his case in a court of law, but “a ruling from the Board will provide a benefit to the court in ruling on issues that are reserved for its decision.” The physician was instructed to file a complaint with the State Board of Pharmacy prior to proceeding with his court case against the pharmacy. Judicial restraint has not been frequently exercised in the numerous legal cases brought against pharmacists and/or pharmacies based on allegations that opioid prescriptions were unlawfully honored when they should have been declined, or that opioid prescriptions were declined when they should have been honored. The California case is a very sensible and welcome exception. State Boards of Pharmacy are well positioned and well qualified to review claims of illegal conduct by the pharmacists or pharmacies that are licensed by them. Under the doctrine of primary jurisdiction, the determination of a Board of Pharmacy is not binding on a court of law, yet it can be useful and persuasive. Justice is best served when legal claims are examined by knowledgeable reviewers.