MD’s Dispute Over Prescriptions Must Go to Pharmacy Board First

A physician’s legal challenge to a pharmacy’s decision to not fill his prescriptions must first be heard by the state pharmacy board, a court has ruled.

Kenneth S. Bradley, MD, treats patients with chronic pain from conditions such as cancer, surgeries, and degenerative disk disease and has referral relationships with about 30 HMOs in the Los Angeles area. Most of his patients receive medical insurance through Medicare or Medi-Cal, according to the facts set out in the recent appellate opinion, Bradley v. CVS Pharmacy, Inc.

Risk Management Lessons from Litigated Cases
Get Medicine on Trial, a free publication of more than 80 litigated cases summarized by CAP's General Counsel Gordon Ownby.

Dr. Bradley’s pain management treatment often includes prescriptions for controlled substances, including opiates such as oxycodone, hydrocodone, and morphine and most of his patients fill their prescriptions at their local CVS pharmacies.

In 2018 and 2019, CVS contacted Dr. Bradley to ask him about increases in his prescriptions for Norco. The physician explained to CVS that the hydrocodone is a low-potency opiate and therefore has a “lower potential for overdose while still controlling pain.” CVS took no action following these communications.

In April 2020, Autumn Miller, a CVS pharmacist in Carson, contacted Dr. Miller to advise him that she would not fill his prescriptions unless he provided a plan for his patients to “taper off their opiate medications.” Dr. Bradley responded by explaining his office procedures and his practice of using “great caution when prescribing opiates.” Dr. Bradley, however, “refused to comply with Ms. Miller’s demand that I create plans to reduce and ultimately eliminate the dosage levels of opiate medications that I had concluded were necessary for my patients.” After that conversation, Miller adopted a policy of refusing to fill Dr. Bradley’s controlled substance prescriptions in her pharmacy.

The next month, a CVS senior manager wrote to Dr. Bradley concerning CVS’ review of the physician’s “prescription dispensing records.” The letter stated that “[b]ased on our data we have identified that your controlled substance prescribing may be outside the normal range in comparison with other prescribers in your specialty and geographic region.”

After receiving the letter, Dr. Bradley spoke with CVS representatives, who had questions about the physician’s prescriptions for Norco for a majority of his patients, his prescriptions for Valium, and a spike in Dr. Bradley’s controlled substance prescriptions during March and April 2020. The physician explained that his prescription options were limited by HMO requirements; Norco is a low-potency opiate; and Valium is a low-potency drug that is helpful for sleep. Dr. Bradley also explained that his prescriptions spiked for several month because of the Los Angeles COVID-19 stay-at-home order. Also, because he was the only person in his practice certified to do e-prescribing, he had “temporarily carried the prescription load” for two other prescribers in his office while the office was closed.

On June 17, CVS wrote to Dr. Bradley informing him that effective the next week, “CVS/pharmacy stores will no longer be able to fill prescriptions that you write for controlled substances.” The letter stated that “[d]espite our attempts to resolve the concerns with your controlled substance prescribing patterns these concerns persist.”

According to CVS, it took this step based on a prescription monitoring program that uses algorithms to gather aggregate data on physicians to identify physicians who “demonstrate extreme patterns of prescribing certain highly regulated drugs.”

Dr. Bradley filed a lawsuit against CVS on June 25, 2020, alleging claims for declaratory relief, unfair competition, tortious interference with contract and prospective economic advantage, and civil rights violations under the state’s Unruh Act.

In opposing Dr. Bradley’s various legal theories, CVS argued that the trial court should defer to the California State Board of Pharmacy. After a hearing on September 15, the trial court denied Dr. Bradley’s request to enjoin the pharmacy’s stoppage and concluded that the physician’s claims “raised issues that should be dealt with by the Pharmacy Board.”

On Dr. Bradley’s appeal, the Court of Appeal agreed with the trial court’s direction, though under a slightly different legal theory. (The appellate court applied a “primary jurisdiction doctrine” instead of the administrative remedy “exhaustion doctrine” used by the trial judge. The alternate approach did not change the outcome.)

According to the Court of Appeal, the critical allegation in Dr. Bradley’s lawsuit is that “[a]s matter of California law, CVS and its pharmacists are required to honor any prescription issued by a physician . . . subject only to a corresponding duty to confirm that the prescription has been issued for legitimate medical purposes related to the patient’s care.” Noting that Dr. Bradley’s legal complaint relied on California Business and Professions Code Section 733 as the source of CVS’ obligation, the appellate court concluded that the Pharmacy Board was the appropriate place for the physician’s complaint to be heard. That is because while a pharmacy licentiate “shall not obstruct a patient in obtaining a prescription that has been legally prescribed” the statute also provides discretion to a pharmacist through language stating that he or she has no duty to fill a prescription if “[b]ased solely on the licentiate’s professional training and judgment, dispensing . . . the prescription is contrary to law.”

The court explained why the matter must first be heard at the Pharmacy Board: “By virtue of its composition and its role, the Board has a unique ability to evaluate whether a decision not to fill prescriptions was justified by a pharmaceutical licensee’s ‘professional training and judgment.’”

The appellate court also noted that CVS’ statutory obligations arise in the context of a national opioid problem, quoting with approval the trial judge: “’Opioids is a very serious issue that I don’t think the court has nearly enough information to make the call on.’”

According to the appellate court, following a final Pharmacy Board decision on Dr. Bradley’s complaint, the trial court action could resume to resolve any remaining issues.   

Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to GOwnby@CAPphysicians.com.