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Commentary

Defamation of a Pharmacy

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July 03, 2019

latnerIn the past, we have looked at the issue of defamation IN the pharmacy, where pharmacy staff made a comment about a physician. This month we look at something entirely different – defamation OF a pharmacy, which resulted in the pharmacy shutting down and the pharmacist-owner losing his livelihood. Was the pharmacist-owner entitled to compensation for the alleged defamation?

Just the Facts
In 2007, Mr. B, a pharmacist, opened a TV Pharmacy in a small town in West Virginia. The pharmacy was opened within a two-block radius of two pain clinics, which were known as notorious “pill mills.” It is undisputed that the TV Pharmacy filled a large number of pain prescriptions. Many of these prescriptions came from the two local pain clinics. Records showed that in 2009, the pharmacy filled over 42,000 hydrocodone prescriptions in a town with fewer than 3100 people—over 39,000 of those prescriptions were written by doctors at the two pain clinics.

Starting in 2010, several pharmacy patients, or their families, began suing Mr. B and his pharmacy for negligently and/or recklessly filling prescriptions and for contributing to his patients’ drug addictions. At least one of Mr. B’s patients died of an overdose. Allegations against Mr. B included that he would fill opioid prescriptions before their refill date, particularly if patients were paying in cash, and that drug deals were witnessed right outside the pharmacy. In 2012, in a lawsuit against pharmaceutical drug distributors, the State of West Virginia referred to TV Pharmacy as “among the most notorious of the pill mill pharmacies in Southern West Virginia.”

The media network CBS found this newsworthy and began looking into it. After an extensive investigation of the opioid epidemic in West Virginia, CBS ran some broadcasts about the situation in 2016, two of which showcased the TV Pharmacy. Following the broadcast, the pharmacy’s distributor refused to supply the pharmacy with controlled substances any longer, and Mr. B was not able to find a distributor that would. Mr. B was forced to sell the pharmacy and try fruitlessly to obtain employment as a pharmacist for WalMart. He was unable to pay alimony and child support to his former wife.

Finally, in frustration, Mr. B filed a lawsuit against CBS, alleging defamation. CBS made a motion for summary judgement, asking the judge to dismiss the case against it.

The Court Decides
Summary judgment is when one party moves for the case to be dismissed prior to trial. It is only granted by the judge when one party is entitled to the judgment according to law, and there are no material disputes as the facts.  (Note: if there is a dispute about the facts, the case must go to a jury to decide. If it is simply a matter of law, then the judge can make that decision if a party makes a motion for summary judgment.)

In West Virginia, the essential elements for a successful defamation action are 1) a defamatory statement; 2) a nonpriviledged communication to a third party; 3) falsity; 4) reference to the plaintiff; 5) negligence or actual malice on the part of the publisher; and 6) resulting injury. After careful examination, the court concluded that Mr. B had failed to establish a successful claim for defamation because he could not show that the statements that CBS made about him were false. Therefore, the court awarded summary judgement to CBS, and dismissed the case against it.

The Takeaway
The Merriam-Webster definition of defamation is “the act of communicating false statements about a person that injure the reputation of that person.” While that is a simplified definition compared to the full legal definition, one major element is the same–the element of falsity. 

Mr. B could not dispute the facts. CBS had records of the number of prescriptions for pain relievers that were filled by his pharmacy. The information reported in the CBS broadcast may have put Mr. B in an unpleasant light, but the information itself was true, and therefore, Mr. B’s defamation case could not stand.

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly Director of Periodicals at the American Pharmacists Association.

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