In mid-August, the Eastern District of Kentucky granted a preliminary injunction in favor of an interventional pain management physician (Physician) against CVS Pharmacy (CVS) based on allegations that CVS was refusing to fill the Physician’s prescriptions. See M.D. Kendall E. Hansen, et al. v. CVS Pharmacy, Inc., No. 21-cv-92 (E.D. K.Y. filed Aug. 19, 2021).  Specifically, the Physician and his practice, Interventional Pain Specialists, PLC (Practice), asserted that CVS refused to fill prescriptions for both controlled and non-controlled substances issued by the Physician and Practice, affecting nearly 300 patients in Northern Kentucky, Indiana, and Ohio. In the preliminary injunction motion, the Physician and Practice claimed tortious interference with a contractual and business relationship; the underlying complaint also includes a claim for defamation per se.

CVS Will Not Fill Physician’s Prescriptions after Identifying Him as High Volume Prescriber of Controlled Substances

In the motion hearing, CVS stated the Physician was identified through the CVS prescriber monitoring program (Program), which is “strictly algorithmic” and, according to the Physician, does not take into account legitimately prescribed medications when determining “suspect” prescribing habits. The Program identified that the Physician had a high number of pain patients and prescribed high volumes of controlled substances. Additionally, the Physician has been under Drug Enforcement Agency (DEA) investigation for his prescribing patterns since 2019 and as recently as this year CVS was asked to provide the DEA with copies of prescriptions written by the Physician and Practice.

In light of this, CVS stated it made “a business decision not to do business” with the Physician because of the high volumes of controlled substances, as well as recent DEA scrutiny. In granting the preliminary injunction against CVS, the court noted its concern with nearly 300 patients being “abruptly” denied medication and suggested that CVS’s ban on accepting both controlled and non-controlled prescriptions from the Physician may be overly broad. However, the litigation is ongoing. As of September 13, 2021, the court ordered that the parties have until September 17, 2021, to reach a settlement. If the parties are unable to resolve the matter, they shall notify the court on or before that date to request a hearing to address injunctive relief. The preliminary injunction shall remain in effect until such hearing (or settlement).

Ongoing Tension between Prescribers and Pharmacies Persist

This lawsuit highlights the tension between prescribers of pain medication and pharmacies that have a corresponding responsibility for the proper prescribing and dispensing of controlled substances. DEA regulations state: “the responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription.” 21 C.F.R. § 1306.04(a) (emphasis added). DEA regulations further clarify an order that is not issued in the usual course of professional treatment is not a prescription within the meaning and intent of the United States Controlled Substances Act. Thus, both the person “knowingly filling” such a purported prescription, as well as the person issuing it, shall be subject to penalties for violations of applicable law.

In addition to potential regulatory risks for pharmacies in connection with terminating prescribers, such as a board of pharmacy discipline, this case also demonstrates that terminated prescribers may have independent causes of action against pharmacies. Here, the Physician brought claims for tortious interference of business and contractual relationships as well as defamation. Pharmacies should be aware of potential tort claims in connection with the decision to terminate prescribers and consider implementing standard policies and procedures to be followed when terminating prescribers to have a defensible position against such claims.

The decision of the Kentucky federal court juxtaposes the obligations of pharmacies against the rights of patients to access medication and physicians to prescribe medications. With the ever-increasing focus of regulators on issues related to controlled substance prescribing and dispensing, finding the balance of these obligations and rights will likely continue to be a challenge for pharmacies.

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