Tennessee Pharmacists Association



By Don R. McGuire, Jr., RPh, JD

A recent decision in West Virginia[1] is garnering a lot of attention in the pharmacy profession and beyond. The 8 cases involve suits by 29 patients alleging that actions by physicians and pharmacists have caused them to become addicted to and abuse controlled substances. They also alleged that the pharmacies acted in concert with the prescribers by such actions as refilling prescriptions early and filling contraindicated prescriptions. After some years of prescribing by the 4 physicians involved, and dispensing by the 3 pharmacies involved, an FBI raid resulted in arrests of some of the health professionals. Some physician licenses were revoked and some were convicted and served prison time. However, only 1 pharmacy and 1 pharmacist were disciplined (the court decision does not indicate that there were any criminal charges).

As the cases progressed, the plaintiffs all admitted to various crimes during the time that they were receiving and filling prescriptions for the various controlled substances. These included criminal distribution, buying drugs off the street in addition to those prescribed, acquiring prescriptions through misrepresentation, fraud or forgery, and doctor shopping. Because of these criminal activities, some of the defendants filed a motion to have the case dismissed on the basis of the Wrongful Conduct rule or the in pari delicto (in equal fault) doctrine. These two concepts have similar origins, but in pari delicto is used more commonly in contractual or transactional disputes. The premise of the Wrongful Conduct rule is that someone who is injured while performing an immoral or criminal act should not be able to recover damages for that injury. The Court quoted another case to explain the rationale for the rule; “. . . public policy that courts should not lend their aid to a plaintiff who founded his cause of action on his own illegal conduct.”[2] The trial court agreed to dismiss the cases, but then sent certified questions to the Supreme Court of Appeals.

The Supreme Court of Appeals declined to invoke the Wrongful Conduct rule in West Virginia because the majority believed the rule was too ambiguous and difficult to apply. They ruled that the jury would take the criminal activity into account when apportioning fault under West Virginia’s comparative fault laws. In West Virginia, if the plaintiff is 50% or more at fault, then they cannot recover any damages. The Court said that comparative fault will essentially take the wrongful conduct of the plaintiff into account, so the Wrongful Conduct rule is unnecessary.

There were 2 dissenting opinions that disagreed with the majority that the rule would be difficult to apply. The dissenting opinions said that it is straightforward; a person should not be able to recover for injuries sustained while committing a crime. Thirteen other states have already adopted the rule. By not invoking the rule, the Court will encourage other criminals to file suits to attempt to profit from their criminal activity. In these particular cases, they contend that the Court is allowing these plaintiffs to clog up the court docket and waste the court’s time.

What does this mean for pharmacists? It’s important to recognize that there has been no trial and no judgment on the facts of these cases. The decision does not mean that the pharmacists or physicians are liable. This opinion is a procedural one that places the eventual resolution of the case in the jury’s hands instead of the judge’s hands. Many readers have probably already formed an opinion about the correctness of the decision. For pharmacists, the real issue is to try not to get involved in such a case in the first place. While this is not always possible, it should be a goal. The monitoring and dispensing of controlled substances is difficult at best. Pharmacists are no longer “order takers” subservient entirely to the doctor’s orders. Pharmacists should be active and diligent in monitoring all of their patients, but especially those with unusual controlled substance needs. Pharmacists need to educate themselves about their patients’ needs. There are plenty of reference articles about effective pain management to consult. Pharmacists also need to educate themselves about their responsibilities as health care professionals. The tightrope between patient needs and good stewardship of controlled substances is not easy to navigate, but ignoring the issue is not a solution.

[1] Tug Valley Pharmacy, LLC, et al. v. All Plaintiffs below in Mingo County Cases, No 14-0144 (Supreme Court of Appeals of West Virginia, May 13, 2015).
[2] Orzel v. Scott Drug Co., 537 N.W.2d 208, 213 (Mich. 1995).

© Don McGuire, Jr., RPh, JD, is General Counsel, Senior Vice President, Risk Management & Compliance at Pharmacists Mutual Insurance Company.

This article discusses general principles of law and risk management. It is not intended as legal advice. Pharmacists should consult their own attorneys and insurance companies for specific advice. Pharmacists should be familiar with policies and procedures of their employers and insurance companies, and act accordingly.

This series, Pharmacy and the Law, is presented by Pharmacists Mutual Insurance Company and the Tennessee Pharmacists Association through Pharmacy Marketing Group, Inc., a company dedicated to providing quality products to the pharmacy community.