February 03, 2020
At the end of 2019, a case was filed by a pharmacist against his former employer, alleging that he was fired in retaliation for refusing to fill a pain medication prescription for a patient who had recently been arrested on drug charges.
The Pharmacist’s Claim
The pharmacist, Mr. S, was in his 50’s when he began working for what was then a Rite Aid, and now a Walgreens, in Maine of 2014. In 2017, the pharmacist became concerned about a prescription for fentanyl patches for a mid-40’s male patient. The patches, Johnson & Johnson’s Duragesic, were intended to provide three days of pain relief. But the patient’s physician prescribed one patch per day for 28 days for the patient because the patient allegedly sweated so profusely that the patches would not stay on his skin for longer than a day. The patient’s insurance would only pay for one patch every three days, so the patient’s physician had contacted the Johnson & Johnson Patient Assistance Foundation which agreed to pay for the rest of the patches.
The pharmacist had several concerns. The prescribing physician was a primary care doctor rather than a pain specialist. Mr. S thought that was a red flag as most opioid prescriptions came from pain management specialists. Another concern was about how the patient was discarding the partially used patches each day. Because of the strength of the patches, the patient would have two-thirds of each patch remaining when it was removed. The pharmacist was aware that the patches could pose a significant health threat and public safety concern for anyone who came in contact with them, and he was concerned that they might not be getting disposed of properly.
The next time the patient’s wife came in to pick up her husband’s prescription, the pharmacist asked her how they discard the semi-used patches. “We just throw them out with the trash,” she allegedly replied, “It’s fine.” But the pharmacist didn’t think it was fine and asked the patient’s wife if they would consider disposing of them at the local police station, which accepted such things. According to the pharmacist, the patient’s wife initially recoiled, but then said, “I suppose that’s an option.”
The pharmacist expressed his concerns to his supervisor, also a pharmacist, but the supervisor was not concerned with the disposal issues, telling Mr. S that his role as pharmacist was limited to simply counseling the patient on safe disposal of the used patches.
The Patient’s Arrest
In February 2018, the pharmacist was reading the local paper and saw that the patient and his wife had been charged with drug trafficking and that drug enforcement officials found $11,000 of cocaine and heroin in the residence. The pharmacist became concerned that the fentanyl patches might have been distributed illegally or sold by the patient and his wife, and he decided that it would be wrong for him to fill the prescription again.
He accessed the store’s computer to find out when the next set of patches was due to be distributed, and then he called both the patient’s physician and the Johnson & Johnson Foundation to tell them that the pharmacy was no longer going to be able to fill the prescription in light of the drug arrest. Shortly thereafter, a Walgreens representative called the pharmacist to tell him that he had been fired.
Pharmacist Alleges Age Discrimination, Whistleblowing
The pharmacist claims that at 59 years old, he was replaced with a substantially younger employee pharmacist, a systemic practice he claims began after Walgreens took over Rite Aid stores in Maine. In a statement, his lawyer said that Walgreens fired the pharmacist “in retaliation for blowing the whistle on Walgreens’ policy and practice of filling unsafe and illegal opioid prescriptions and deviating from the applicable standard of patient care.”
The pharmacist noted that he was required to complete Walgreens’ “Good Faith Dispensing Checklist” before electronically filling any Schedule II drug, such as fentanyl. The first question in the checklist was “Are there warning signs present with this patient or this prescription?” According to his attorney, the pharmacist no longer felt that he could answer “no,” and thus could not fill the prescription.
What Will Become of This Case?
We will follow this case with great interest, but many cases never make it to trial. There are interesting questions in this one, however. Should the pharmacist have called the patient’s physician and Johnson & Johnson before the patient had even come in for a refill, or was he jumping the gun? Should the pharmacist have questioned the physician directly earlier, when he was concerned about the disposal of the patches or their sheer number? Was the pharmacist fired for accessing the patient’s records, or was that just a pretext for firing him for not just filling the prescription without question? Or was the pharmacy simply looking for a way to hire younger, less expensive workers?
This case has only recently been filed and is still in the early stages. Stay tuned to find out what the employer has to say.
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.