Walgreens Faces Suit Over Teen’s Seizure Death(1)

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By Julie A. Steinberg

Walgreens must face a family’s suit alleging its negligence caused the seizure death of a 19-year-old whose prescription couldn’t be filled without authorization from her insurance carrier.

Pharmacies owe a legal duty of care to take reasonable steps to notify customers and their prescribing physicians of the need for prior insurance authorization each time they try to fill their prescriptions, the Massachusetts top court said June 7.

This decision is the first in the U.S. to recognize a duty in these circumstances, the attorney who argued the case for the famliy, Thomas M. Greene of Greene LLP in Boston, told Bloomberg Law June 8.

Walgreens declined to comment on the decision.

Importance of Notice

Health insurers often require prescribing physicians to submit prior authorization forms to establish that prescriptions for particular medications are medically necessary and cost-effective, Judge Barbara A. Lenk wrote for the court.

It’s important to ensure that doctors are notified, Greene said, adding that the doctor is the only one who can complete the pre-authorization paperwork.

A group that represents low-income Massachusetts residents in need of health care agreed.

“The duty to share this information with their client’s physician will help ensure that medical professionals communicate effectively with one another, without leaving patients to fall through the cracks,” Health Law Advocates in Boston told Bloomberg Law in a statement sent by its attorney, Wells G. Wilkinson.

The advocacy group filed a brief in support of the family’s lawsuit.

Here, prior authorization was necessary in order for Yarushka Rivera to obtain insurance coverage for Topamax, a medication she needed to control life-threatening seizures, the court said.Rivera was unable to afford the medication without insurance, and could not take her medication in the months before she suffered a fatal seizure, the court said.

A trial court granted summary judgment for Walgreens, saying it had no duty to notify Rivera’s doctors about the need for authorization.

The Supreme Judicial Court reversed.

Only Limited Notice

But the new notification duty is limited, the court said. The pharmacy was not required to follow up on its own or ensure that the prescribing physician received the notice or completed the prior authorization form, it said.

Justice David A. Lowy dissented, saying the majority is imposing a “nebulous duty” on pharmacies to inform physicians that a prior authorization is required for certain medications in order to secure insurance coverage.

The National Association of Chain Drug Stores, Inc., which supported Walgreens in a friend-of-court brief, didn’t immediately return a request for comment.

The country’s biggest plaintiffs’ lawyer group, the American Association of Justice, supported the family’s position.

Greene LLP represented the plaintiff.

Lynch & Lynch represented Walgreen Eastern Co.

The case is Correa v. Schoeck , 2018 BL 201174, Mass., SJC-12409., 6/7/18 .

To contact the reporter on this story: Julie A. Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com

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