September 25, 2019
When can a pharmacist’s comments to a patient be considered slander? This is an issue that is arising more frequently, and it’s important for pharmacists to understand what constitutes slander or defamation, and what doesn’t.
Just the Facts
The case involved a physician, two different CVS pharmacies, and two pharmacists. The physician, Dr K, wrote a prescription for phentermine for a patient. When the patient attempted to fill the prescription at her local CVS, the pharmacist on duty, Pharmacist A, refused to fill the prescription. The pharmacist told the patient, “It’s not the amount I have a problem with. It’s the doctor. I heard that his DEA number was suspended and that he is under investigation.”
A few days later, another patient of Dr K’s, who had been prescribed Suboxone, went to a different CVS pharmacy, where Pharmacist B refused to fill the prescription. The patient was told by the pharmacist that “we are having problems with this doctor… He writes too many controls to where the DEA is involved…”
Both patients told Dr K about their experiences, and he sued CVS and the pharmacists, alleging defamation and slander arising out of the pharmacists’ statements to the patients. CVS filed a motion for summary judgement, and the lower court dismissed the claims against CVS, ruling that the pharmacists’ statements were substantially true and thus not slander.
The physician appealed and the case went to the appellate court.
The court first explained that “a statement is considered slander per se, and is actionable without the need to prove special damages, when its publication tends to injure a person in his profession, trade or business…” The court went on to explain that since slander is a type of defamation, truth–or substantial truth–is an absolute defense to the action. The court noted that when evaluating whether a statement is true or substantially true, slight inaccuracies will not prevent a statement from being true in substance as long as the ‘gist’ of the statement is justified. Similarly, the court pointed out, a technically false statement may nonetheless be considered substantially true if the statement differs from the truth in only insignificant details.
After pointing this out, the court had to examine the statements themselves. Dr K alleged that the statements by the pharmacists saying that his DEA number was suspended and that he was under investigation by the DEA were false because the DEA never conducted an investigation into his prescription writing practices, and never suspended his ability to prescribe controlled substances.
The court disagreed about the portion of the statement involving a DEA investigation, noting that, “insofar as these statements assert that a governmental licensing agency was investigating Dr K for improper prescribing, they were substantially true.” Dr K did not dispute that when the statements were made, the state medical board had four open investigations against him that concerned allegations of inappropriate prescribing, including over-prescribing opioid medications. Although the pharmacists were wrong about what government body was investigating the physician, it was in fact true that he was being investigated. The fact that it was the medical board and not the DEA doing the investigating was immaterial, held the court.
“Any damage to Dr K’s reputation stemmed from the fact that a governmental licensing agency was investigating him for possible improper prescribing practices, not the identity of the particular agency,” wrote the court in its decision.
On the other hand, the court noted that as far as the statement that Dr K’s DEA number was suspended, there was no evidence that the DEA or any other agency had suspended Dr K’s authority to write prescriptions. Therefore, the court could not conclude that this statement was substantially true. The court held that the lower court had erred as far as the statement that Dr K had his DEA number suspended. The court affirmed the summary judgment regarding the statements that Dr K was under investigation for improper prescribing, but it reversed the dismissal of the portion of the case regarding the statement that Dr K’s DEA number was suspended. The case was remanded back to the lower court for further proceedings.
Be cautious when speaking to patients, particularly when speaking about their health care practitioner. Don’t make speculations. Don’t gossip with patients. Be aware that what you say could come back in an unpleasant way in the future. If you need to refuse to fill a prescription, then do so, but do not make unsolicited comments about the patient’s physician.
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.