Pharmacist's whistleblower claim for wrongful termination is rejected

Abstract

Most pharmacists are “at will” employees, meaning that without an employment contract stating to the contrary, they can be discharged at the employer's will for any or no reason. Many state laws contain an exception to the “discharge at will” doctrine, providing that an employee may not be discharged from employment for refusing to participate in an illegal act or for reporting illegal acts by the employer. This provision encourages “whistleblowers” to report and put an end to illegal conduct they detect. A Mississippi pharmacist recently attempted to assert the whistleblower provision following her discharge from employment. The plaintiff, who had been designated as the pharmacy's Pharmacist-in-Charge (PIC), had what the court called a “rocky” relationship with the pharmacy owners. She thought that the owners “infringed on her authority as the PIC.” She wanted “full reign” over a pharmacy technician and the relief pharmacist, and she felt that she had not been given this needed authority. The event that led to termination of the plaintiff's employment occurred on the Saturday of a Labor Day weekend. At the end of that day, the relief pharmacist processed a verbal order for four diazepam tablets for a patient. On Tuesday morning, the plaintiff opened the pharmacy and discovered a new prescription for a larger quantity of the drug, with the notation to “take four tablets out” of the quantity dispensed. The prescription was dated with Tuesday's date. The plaintiff concluded that the relief pharmacist had unlawfully dispensed the four diazepam tablets on Saturday. She reported this allegedly illegal act to the pharmacy owners. The report apparently led to a series of “heated” discussions over a period of days, eventually resulting in the plaintiff being fired. The plaintiff's wrongful discharge lawsuit against her former employer was dismissed, and from the dismissal the pharmacist appealed. The court evaluated the evidence, which was somewhat contradictory. The court concluded that the relief pharmacist had received a verbal authorization to dispense a Schedule IV controlled substance, and that verbal prescriptions are allowed for these medications. The plaintiff contended that the prescription was not lawful because the prescription had not been “reduced promptly to writing,” as is required by law. In support of this argument, the plaintiff cited the delay between the Saturday when the order was received and the Tuesday date on the written prescription. The court noted that the word “promptly” is not defined in the relevant laws. The court examined the purpose of controlled substance regulations, concluding that they are “designed to ensure that the doctor examines the patient before delivering the prescription and to ensure that there is a legitimate medical reason for delivering the prescription.” The court ruled that the plaintiff had failed to provide any evidence “that a delay of such duration is a crime.” Dismissal of the plaintiff's wrongful discharge lawsuit was affirmed. All pharmacists, and particularly those designated as a pharmacy's PIC, have a significant responsibility to ensure that violations of pharmacy laws are avoided. When regulatory violations occur, they must be reported to appropriate pharmacy authorities. Whistleblower laws in many states protect a reporting pharmacist from retaliation based on the submission of such a report. Whistleblower laws apply when a clear violation of regulatory requirements has occurred or is reasonably suspected to have occurred. Unique interpretations of the law that support allegations of minor regulatory violations cannot be used as a smokescreen to avoid the consequences of major disagreements with management. The diversion of controlled substances is a very serious matter. Any activity related to controlled substance diversion must be reported to and taken seriously by management. Disagreements over the definition of a word like “promptly” may lead to interesting discussions, but it is unlikely that a clear violation of regulatory requirements will be identified by these discussions.