Correa v. Schoeck

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SJC-12409
CARMEN CORREA, administratrix, 1 vs. ANDREAS P. SCHOECK
& others. 2
Middlesex. February 6, 2018. - June 7, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Pharmacy. Wrongful Death. Negligence, Wrongful death,
Pharmacy. Interest. Damages, Wrongful death,
Interest. Judgment, Interest. Practice, Civil, Judgment,
Interest.
Civil action commenced in the Superior Court Department on
October 19, 2012.
The case was heard by Dennis J. Curran, J., on a motion for
summary judgment, and entry of separate and final judgment was
ordered by him.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Thomas M. Greene (Michael Tabb & Simon L. Fischer also
present) for the plaintiff.
1 Of the estate of Yarushka Rivera.
2 New England Neurological Associates, P.C.; and Walgreen
Eastern Co., Inc.
2
Bruce H. Murray for Walgreen Eastern Co., Inc.
Tory A. Weigand, for Andreas P. Schoeck & another, was
present but did not argue.
The following submitted briefs for amici curiae:
Mary Ellen Kleiman, of the District of Columbia, & John F.
Brosnan for National Association of Chain Drug Stores, Inc.
Kathleen L. Nastri, of Connecticut, Jeffrey R. White, of
the District of Columbia, & Jonathan A. Karon, Thomas R. Murphy,
Kristie A. LaSalle, & Kevin J. Powers for American Association
of Justice & another.
Wells G. Wilkinson & Victoria Pulos for Health Law
Advocates, Inc., & others.
LENK, J. In this case, we address the novel issue whether
a pharmacy has a legal duty to notify a prescribing physician
when a patient's health insurer informs the pharmacy that it
requires a "prior authorization" form 3 from the physician.
Health insurers often require prescribing physicians to submit
prior authorization forms to establish that prescriptions for
particular medications are medically necessary and cost-
effective. Since it is the pharmacy that submits the claim for
reimbursement, however, only the pharmacy, and not the physician
or the patient, is notified when a prescribing physician must
complete a prior authorization form and submit it to the
insurer.
Prior authorization was necessary in order for Yarushka
Rivera to obtain insurance coverage for Topamax, a medication
she needed to control life-threatening seizures. Rivera was
3 See 130 Code Mass. Regs. §§ 406.422, 450.303 (2016).
3
diagnosed with seizure disorder, which is also known as
epilepsy, a few months before her nineteenth birthday. Rivera's
insurer, MassHealth, twice paid for her Topamax prescription
without issue. Once Rivera reached her nineteenth birthday,
however, the insurer refused to pay for the prescription because
it had not received the prior authorization form required for
Topamax patients over the age of eighteen. Her family then made
numerous attempts to obtain the prescribed medication from her
pharmacy, Walgreen Eastern Co., Inc. (Walgreens), to no avail.
Rivera was unable to afford the medication without insurance,
and thus could not take her medication in the months before she
suffered a fatal seizure at the age of nineteen.
Carmen Correa, Rivera's mother, subsequently brought this
action for wrongful death and punitive damages against
Walgreens; Rivera's neurologist, Dr. Andreas P. Schoeck
(Schoeck); and Schoeck's office, New England Neurological
Associates, P.C. (NENA). Correa maintains that Walgreens
repeatedly told Rivera and members of her family that Walgreens
would notify Schoeck of the need for prior authorization, but
Schoeck and NENA deny ever receiving notice. A Superior Court
judge allowed Walgreens's motion for summary judgment, on the
ground that Walgreens owed no legal duty to Rivera to notify
Schoeck and NENA of the need for prior authorization. The judge
entered final judgment against Walgreens and stayed the claims
4
against Schoeck and NENA so that Correa could expedite her
appeal. He also stayed the accrual of prejudgment interest as
to Schoeck and NENA pending resolution of the appeal.
Because we conclude that Walgreens had a limited duty to
take reasonable steps to notify both the patient and her
prescribing physician of the need for prior authorization each
time Rivera tried to fill her prescription, we reverse the
allowance of summary judgment for Walgreens. Walgreens's duty
extends no further, however -- the pharmacy was not required to
follow up on its own or ensure that the prescribing physician in
fact received the notice or completed the prior authorization
form. We conclude also that the judge erred in staying the
accrual of prejudgment interest. 4
1. Background. a. Facts. On May 13, 2009, Rivera
suffered a seizure; it appears to have been her first. Rivera
was eighteen at the time and living under the care of her
mother, Correa, and her stepfather, Julio Escobar. Rivera was
taken to a hospital, where she was treated for seizure disorder.
Upon discharge three days later, a physician at the hospital
prescribed her Topamax, an antiepileptic medication. Later that
4 We acknowledge the amicus briefs submitted by the National
Association of Chain Drug Stores, Inc.; the American Association
of Justice and the Massachusetts Academy of Trial Attorneys; and
Health Law Advocates, Inc., the Massachusetts Law Reform
Institute, the Center for Health Policy and Law of Northeastern
University, and the Public Health Advocacy Institute.
5
month, Rivera began seeing a neurologist, Schoeck, who agreed
that she should continue taking Topamax.
In June, 2009, Rivera filled the Topamax prescription
written by the hospital physician at her local Walgreens
pharmacy. MassHealth covered payment for the prescription
without incident. Later that month, Rivera and her family tried
to refill the Topamax using Schoeck's prescription, but a
Walgreens pharmacist explained that it was too early to do so
because Rivera had not finished the previous prescription. The
pharmacist also informed them that, in the future, MassHealth
would require a prior authorization form, to be completed by
Rivera's prescribing physician, in order for the insurer to
cover the cost of the medication. According to Correa, the
pharmacist said that it was Walgreens's policy to notify the
prescriber by facsimile or telephone of the need for prior
authorization, and that Walgreens would contact Schoeck, but
there is no evidence that Schoeck was so notified.
At that time, MassHealth required a prior authorization
form to cover the cost of Topamax for individuals over eighteen
years of age. Rivera was eighteen when she began taking
Topamax, but would turn nineteen shortly thereafter, on August
3, 2009. The prior authorization form is predominantly intended
to establish the medical necessity and effectiveness of the
prescribed medication, and to ensure that there are not "more
6
cost-effective alternatives," as MassHealth "strongly advocates
the use of generic drugs." Executive Office of Health and Human
Services, Introduction to MassHealth Drug List,
https://masshealthdruglist.ehs.state.ma.us/MHDL/pubintro.do
[https://perma.cc/5H6U-U6UX]. During the relevant time period,
the form used was two pages long and took ten minutes or less to
complete; it required entry of information about the patient's
MassHealth membership, diagnosis, prescribed medication, basic
history, prescriber information, and the prescriber's signature.
A patient's prescribing physician must submit the prior
authorization form to MassHealth; pharmacies and patients are
unable to complete the form. MassHealth notifies only the
pharmacy of the need for prior authorization, however, because
it is the pharmacy that submits the claim for coverage;
MassHealth does not notify the patient or the physician when
prior authorization is required. Although they are not required
to do so by law or regulation, pharmacists at Walgreens and
other pharmacies routinely send a facsimile transmission to the
prescribing physician with the relevant patient information to
alert the physician to the need for prior authorization, and
sometimes place telephone calls to follow up on the required
forms.
When prescription coverage is denied by an insurer due a
need for prior authorization, Walgreens's computer system
7
immediately notifies the pharmacist. Upon issuing the alert,
the computer system also allows its employees, with a single
"click" of a computer "mouse," to send a facsimile message to
the prescribing physician, with the necessary patient and
medication information, notifying the physician of the need for
prior authorization. Walgreens pharmacists sometimes also
follow up with prescribing physicians regarding prior
authorization via telephone, particularly when a patient
requests that they do so. During the relevant time period,
however, Walgreens did not have a practice of creating or
maintaining records of any communications or attempted
communications with physicians regarding the need for prior
authorization.
NENA, in turn, receives notices that prior authorization is
needed from pharmacies via facsimile on a daily basis. NENA
first learns that a patient requires prior authorization when it
receives a facsimile transmission from a pharmacy, not from any
other sources; it is rare for patients to contact NENA directly
regarding the need for prior authorization. Upon receipt of a
facsimile transmission concerning the need for prior
authorization, Schoeck's assistant fills out as much of the
prior authorization form as she can and gives the form to
Schoeck to complete. The assistant then submits the form via
8
facsimile to the insurer on the same day that she receives the
notice.
Rivera's family was again able to fill Schoeck's
prescription without prior authorization on July 26, 2009, as
she was not yet over the age of eighteen. At that visit, a
Walgreens pharmacist stated that any future prescriptions would
not be covered by MassHealth without the prior authorization
form, since she would turn nineteen before the prescription
could be refilled. The pharmacist told Rivera's family to
inform Schoeck of the need for the form. According to Correa,
that pharmacist also assured them that Walgreens would notify
Schoeck by telephone or facsimile of the need for prior
authorization, as was customary policy. There is no evidence in
the record that the pharmacist so notified Schoeck.
Rivera ran out of her Topamax supply in August, 2009.
Between July and October, 2009, Escobar spoke with Schoeck's
office approximately seven times via telephone concerning the
required prior authorization form. Escobar attests that he made
these calls to assist Walgreens's efforts, as he and his family
relied on Walgreens to obtain the appropriate paperwork from
Schoeck's office. He explained that he, Rivera, and Correa
would not have known how to obtain the necessary paperwork
without Walgreens's assistance. Sometime in August, 2009,
Escobar also telephoned a Walgreens employee, who again
9
recommended that Rivera's family contact Schoeck about the need
for prior authorization.
Rivera suffered a second seizure on September 2, 2009,
while she was visiting Rhode Island. She was hospitalized and
discharged with a small supply of Topamax and a prescription for
more of the medication. On September 8, 2009, Rivera, Correa,
and Escobar attempted to fill the prescription for Topamax
obtained in Rhode Island at the same local Walgreens, but a
Walgreens pharmacist stated that MassHealth had again denied
coverage due to lack of prior authorization. Correa maintains
that this pharmacist also promised to contact Schoeck regarding
the necessary form. There is no evidence that Walgreens
followed up with Schoeck. At that visit, Rivera and her family
were told that they could get the prescription filled if they
paid the full $399.99 cost of the medication out of pocket, but
they were unable to afford that amount. They told the Walgreens
employee that they would contact Schoeck's office again.
Rivera and her family unsuccessfully tried to fill
Schoeck's prescription for Topamax four more times, on
September 18, September 28, October 12, and October 13, 2009.
Correa maintains, and Walgreen denies, that a pharmacist assured
Rivera and her family on each occasion that Walgreens would
notify Schoeck about the necessary form. Correa and Escobar
claim that if Walgreens had not made such assurances, they would
10
have gone to a different pharmacy to assist them in obtaining
prior authorization. None of Walgreens's employees has any
memory of communicating or attempting to communicate with
Schoeck or with NENA concerning Rivera's Topamax prescription.
Walgreens, along with some of the pharmacists who directly
interacted with Rivera's family, conceded knowledge, however,
that if a customer suffering from epilepsy suddenly stopped
taking Topamax, that customer could suffer a seizure.
According to Correa, at an appointment on October 19, 2009,
Rivera told Schoeck that she had not been able to take her
Topamax since the end of August, because his office had not
completed the necessary paperwork, and he told her that he would
have his assistant look into it. Schoeck and NENA maintain that
they were never notified by pharmacists or family members about
the need for prior authorization in this case.
Rivera died after suffering a third seizure, on October 29,
2009. 5
5In June, 2009, after she suffered her first seizure,
Rivera also began seeing a psychiatrist who diagnosed her with
bipolar disorder and depression. The psychiatrist prescribed
her Lamictal and Celexa for her mood disorders. Rivera was able
to fill these prescriptions at her local Walgreens without
incident. Two weeks before Rivera's death, the psychiatrist
lowered the dosage of Lamictal. According to Correa, in
September, 2009, while Rivera was hospitalized in Rhode Island,
Schoeck's assistant told Escobar that Lamictal also was an
effective treatment for seizures, so even if Rivera could not
11
b. Prior proceedings. Acting on behalf of Rivera's
estate, Correa brought this action for wrongful death and
punitive damages against the defendants, alleging that the
defendants' negligence caused her daughter's death. See G. L.
c. 229, §§ 2, 6. Walgreens moved for summary judgment on the
ground that it owed no legal duty to Rivera. The motion judge
allowed Walgreens's motion for summary judgment without a
written decision, and invited Walgreens to file a motion for
entry of a separate and final judgment.
Correa moved for reconsideration, or, alternatively, for
entry of a separate and final judgment against Walgreens, and a
stay of trial, so that she could appeal from the decision. In
their opposition to Correa's motion, Schoeck and NENA also
sought a stay of any accrual of prejudgment interest pending
Correa's appeal of the allowance of Walgreens's motion for
summary judgment.
The motion judge issued a written opinion denying the
request for reconsideration. In order to facilitate Correa's
appeal and to prevent duplicative trials, he entered a separate
and final judgment against Walgreens and stayed the claims
against Schoeck and NENA. In addition, the judge stayed the
accrual of prejudgment interest, opining that, because Schoeck
obtain Topamax, she would be "fine" if she continued to take
Lamictal.
12
and NENA were not responsible for the delay that the stay of
claims would cause, allowing prejudgment interest to accrue
during the appeal would result in a windfall to Correa. Correa
unsuccessfully moved to alter or amend the judgment. 6
On appeal, Correa maintains that Walgreens had a legal duty
to notify Schoeck of the need for prior authorization or,
alternatively, that Walgreens voluntarily assumed such a duty.
She also argues that the motion judge erred in staying the
accrual of prejudgment interest as to Schoeck and NENA.
2. Discussion. a. Standard of review. "The standard of
review of a grant of summary judgment is whether, viewing the
evidence in the light most favorable to the nonmoving party, all
material facts have been established and the moving party is
entitled to a judgment as a matter of law." Augat, Inc.
v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). We review
such decisions de novo, and therefore accord no deference to the
decision of the motion judge. Chambers v. RDI Logistics, Inc.,
476 Mass. 95, 99 (2016).
6 NENA also sought summary judgment as to the punitive
damages claim against it on the ground that it could not be
vicariously liable for punitive damages. A different motion
judge denied the motion. That judge noted that the complaint
alleged gross negligence, and the record presented a genuine
issue of material fact whether Schoeck's conduct amounted to
gross negligence.
13
b. Duty of care. To prevail in her wrongful death suit,
Correa must prove that the defendants were negligent. Afarian
v. Massachusetts Elec. Co., 449 Mass. 257, 261 (2007). The
elements of a negligence claim are that "the defendant owed the
plaintiff a duty of reasonable care, that the defendant breached
this duty, that damage resulted, and that there was a causal
relation between the breach of the duty and the
damage." Jupin v. Kask, 447 Mass. 141, 146 (2006). At issue
here is whether Correa can establish a legal duty of care on
Walgreens's part. "[T]he existence or nonexistence of a duty is
a question of law, and is thus an appropriate subject of summary
judgment." Id.
"The concept of 'duty' . . . 'is not sacrosanct in itself,
but is only an expression of the sum total of . . .
considerations of policy which lead the law to say that the
plaintiff is entitled to protection. . . . No better general
statement can be made than that the courts will find a duty
where, in general, reasonable persons would recognize it and
agree that it exists'" (alterations omitted). Id.,
quoting Luoni v. Berube, 431 Mass. 729, 735 (2000). The duty of
care is derived from "existing social values and customs and
appropriate social policy." Jupin, supra at 143,
quoting Cremins v. Clancy, 415 Mass. 289, 292 (1993).
14
Accordingly, "imposition of a duty generally responds to changed
social conditions" (citation omitted). Jupin, supra at 147.
In light of the evolving nature of the pharmacist-patient
relationship, Walgreens's specific knowledge regarding the need
for prior authorization, the industry-wide customs and practices
of pharmacies handling prior authorization requests, and the
foreseeability of the harm to Rivera, we conclude that Walgreens
owed a limited duty to take reasonable steps to notify both
Rivera and Schoeck of the need for prior authorization each time
Rivera tried to fill her prescription.
i. Pharmacist-patient relationship. The pharmacist-
patient relationship is unlike that of a typical store vendor
and customer. Pharmacists are no longer "confined to standing
behind a counter and distributing prescription medications to
patients," and "now also do many other things.'" Van Beek, The
Future for Pharmacists: Does Physician-Pharmacist Collaborative
Practice Mean Collaborative Liability?, 36 J. Legal Med. 442,
444 (2015). Pharmacists also are particularly well suited to
"relay critical information back to prescribers" (citation
omitted). Id. See Baker, The OBRA 90 Mandate and Its
Developing Impact on the Pharmacist's Standard of Care, 44 Drake
L. Rev. 503, 504 (1996) ("During the 1970s, pharmacists began
searching for a new role -- one more compatible with their
education and knowledge. [They were] [u]nwilling to be
15
relegated to the simple functions of 'count, pour, lick and
stick' . . .").
In Massachusetts, pharmacists are statutorily obligated to
take certain steps to identify and prevent medical risks to a
patient. General Laws c. 94C, § 21A, requires pharmacists to
"conduct a prospective drug review before each new prescription
is dispensed or delivered to a patient or a person acting on
behalf of such patient." The corresponding regulations of the
Board of Registration in Pharmacy specify that the required
"prospective drug utilization review" includes a "reasonable
effort" to identify, inter alia, instances of "drug-disease
contraindication," "incorrect drug dosage or duration of drug
treatment," and "drug-allergy interactions." 247 Code Mass.
Regs. § 9.07(2)(a) (2013). Upon learning of such dangers, "the
pharmacist shall take appropriate measures to ensure the proper
care of the patient." 247 Code Mass. Regs. § 9.07(2)(b) (2013).
The regulations specifically contemplate that this "may include
consultation with the prescribing practitioner and/or direct
consultation with the patient." Id.
General Laws c. 94C, § 21A, further requires pharmacists to
"offer to counsel" any patient when the pharmacist fills a new
prescription, either face-to-face or by telephone, "except when
the patient's needs or availability require an alternative
method of counseling." "For the purposes of medical assistance
16
and other third party reimbursements or payment programs, any of
the [aforementioned] methods, or a combination thereof, shall
constitute an acceptable offer to provide counseling." Id.
That these statutes and regulations refer to those obtaining
prescriptions as "patients" rather than "customers" also
indicates that the relationship between pharmacist and patient
goes beyond that of a typical commercial relationship.
Thus, while pharmacists are not required by law or
regulation to facilitate prior authorization processes for
patients, it is evident that they have some role in furthering
the well-being of their patients, and are well situated to
assist patients with certain issues regarding their medications.
ii. Specific knowledge. 7 This court has long recognized
that pharmacies have a duty to fill prescriptions
correctly. Cottam v. CVS Pharmacy, 436 Mass. 316, 320 (2002),
citing Andreottala v. Gaeta, 260 Mass. 105, 109 (1927),
and Nesci v. Angelo, 249 Mass. 508, 511 (1924). See G. L. c.
94C, § 19 (a) ("The responsibility for the proper prescribing
7 The record before us makes no meaningful distinction
between "pharmacists" and "pharmacies," and the parties use the
terms interchangeably. We conclude that, in the context of
notifying patients and physicians of the need for prior
authorization, the duties of pharmacists and pharmacies are
coextensive. See generally Cottam v. CVS Pharmacy, 436 Mass.
316, 320-323 (2002) (using "pharmacist" and "pharmacy"
interchangeably in finding no duty to warn patients of general
side effects of medications).
17
and dispensing of controlled substances shall be upon the
prescribing practitioner, but a corresponding responsibility
shall rest with the pharmacist who fills the prescription").
In Cottam, supra at 320-321, this court held that pharmacists do
not, however, have a duty to warn patients of general side
effects of prescription drugs. The court reasoned that under
the "learned intermediary doctrine," which traditionally has
been applied to drug manufacturers, "a prescription drug
manufacturer's duty to warn of dangers associated with its
product runs only to the physician; it is the physician's duty
to warn the ultimate consumer." Id. at 321, quoting McKee
v. American Home Prods. Corp., 113 Wash. 2d 701, 709 (1989).
Thus, "[r]equiring the manufacturer to provide warnings directly
to the consumer would interfere with the doctor-patient
relationship." Cottam, supra. The court in Cottam extended the
learned intermediary doctrine to pharmacies, as the reasons
behind the doctrine applied "with equal force" to
pharmacies. Id. at 321-322, citing McKee, supra at 711.
Nonetheless, Cottam left open the possibility that a legal
duty exists in circumstances where a "pharmacist failed to act
on specific knowledge that he or she possessed regarding danger
to a particular customer." Cottam, supra at 322-323
(acknowledging that courts in other jurisdictions have imposed
duties on pharmacies in cases that involve "more than a simple
18
failure to warn," such as "filling a prescription for what the
pharmacist knew to be a lethal dose, . . . failing to warn the
customer when filling two prescriptions that adversely interact
with one another, . . . and . . . failing to warn the customer
of the drug's adverse interaction with alcohol where the
customer was known by the pharmacist to be an alcoholic"). 8 The
"modern trend of case law" is that "the learned-intermediary
doctrine does not insulate a pharmacist from liability when he
or she has knowledge of a customer-specific risk. Instead, when
a pharmacist has such knowledge, the pharmacist has a duty to
warn the customer or to notify the prescribing doctor of the
customer-specific risk." (Footnote omitted.) See Klasch
v. Walgreen Co., 127 Nev. 832, 840 (2011). See also Happel
v. Wal–Mart Stores, Inc., 199 Ill. 2d 179, 197 (2002) ("we hold
that a narrow duty to warn exists where, as in the instant case,
a pharmacy has patient-specific information about drug
allergies, and knows that the drug being prescribed is
contraindicated for the individual patient").
We consider this "modern trend" instructive. Given their
role in patient care, pharmacists are trained and well situated
to notify patients and physicians when pharmacists have specific
8 See, e.g., Lasley v. Shrake's Country Club Pharmacy, Inc.,
179 Ariz. 583 (Ct. App. 1994); Horner v. Spalitto, 1 S.W.3d 519
(Mo. Ct. App. 1999); Hand v. Krakowski, 89 A.D.2d 650 (N.Y.
1982).
19
knowledge regarding a risk of harm to a particular customer
filling a prescription. Contrary to Walgreens's argument, this
case is readily distinguishable from the circumstances
in Cottam, 436 Mass. at 321, where imposing a duty on
pharmacists to warn patients of general medication side effects
would have interfered with the doctor-patient relationship.
Because MassHealth does not notify prescribing physicians of the
need for prior authorization, pharmacies actually facilitate the
doctor-patient relationship by notifying the physician of this
need, and thus helping to ensure that the patient obtains
insurance coverage for the medication that the doctor wants the
patient to take. See Horner v. Spalitto, 1 S.W.3d 519, 523 (Mo.
Ct. App. 1999) (Pharmacists "are in the best position to contact
the prescribing physician, to alert the physician about the dose
and any contraindications relating to other prescriptions the
customer may be taking as identified by the pharmacy records,
and to verify that the physician intended such a dose for a
particular patient. We do not perceive that this type of risk
management unduly interferes with the physician-patient
relationship. Instead, it should increase the overall quality
of health care" [footnote omitted]).
To determine whether the duty to act on specific knowledge
regarding potential harm to a particular patient extends to
situations where prior authorization is needed, we turn to the
20
relevant industry practices, which tend to indicate the expected
standard of care in the industry.
iii. Industry practices. The Restatement (Second) of
Torts § 299A (1965) (Restatement) provides that, "[u]nless he
represents that he has greater or less skill or knowledge, one
who undertakes to render services in the practice of a
profession or trade is required to exercise the skill and
knowledge normally possessed by members of that profession or
trade in good standing in similar communities." This principle
"applies to any person who undertakes to render services to
another in the practice of a profession, such as that of
physician or surgeon, dentist, [or] pharmacist . . . ." Id. at
§ 299A comment b.
Walgreens conceded at oral argument that it has a duty to
notify the patient of the need for prior authorization, but
maintains that it has no duty to notify the prescribing
physician. Correa submitted undisputed evidence in her motion
for summary judgment, however, that Walgreens pharmacists
routinely notify patients and prescribers' offices directly of
the need for prior authorization, and that, according to her
proffered expert, this practice is typical of the industry. 9
9 Walgreens contends that notifying physicians of the need
for prior authorization is not part of its practice, and that it
merely requires employees to notify the customer of the need for
21
Indeed, Schoeck and NENA regularly receive notices of the need
for prior authorization from pharmacies, and it is rare for them
to receive notice from a patient. Walgreens pharmacists are
even trained to provide such notice, and the computer system
they use has built-in mechanisms to assist them in doing so.
The skill and knowledge of pharmacists today involve more
than the dispensing of pills. A pharmacist exercising the skill
and knowledge normally possessed by members of the professional
community ordinarily would notify a patient and the prescribing
physician that prior authorization is needed. 10
prior authorization and advise the customer to notify his or her
physician. In their depositions, Walgreens employees, in turn,
characterized their facsimile transmissions and telephone calls
to prescribing physicians as a mere "courtesy" to their
customers. These characterizations are not dispositive. While
a duty may be created by a company's internal policies, a legal
duty also may rest on industry practices and policy
considerations for an industry as a whole. See Jupin, 447 Mass.
at 143, 146-147.
10 The American Pharmacists Association (APhA) contemplates
greater pharmacist involvement in the prior authorization
process, in order to help patients overcome what it considers a
"barrier[] to patient care." American Pharmacists Association
Policy Manual (2017), http://www.pharmacist.com/policy-manual
[https://perma.cc/JM8Y-8259] (select "Patient/pharmacist
Relationships" and then "Prior Authorization"). Consistent with
industry practices, APhA "supports prior authorization programs
that allow pharmacists to provide the necessary information to
determine appropriate patient care." Id. Indeed, APhA's policy
manual asserts that "[p]rescription drug benefit plan sponsors
and administrators should actively seek and integrate the input
of network pharmacists in the design and operation of prior
authorization programs." Id.
22
iv. Foreseeability. "[A]s a general principle of tort
law, every actor has a duty to exercise reasonable care to avoid
physical harm to others" (footnote omitted). Jupin, 447 Mass.
at 147, quoting Remy v. MacDonald, 440 Mass. 675, 677 (2004).
"A precondition to this duty is, of course, that the risk of
harm to another be recognizable or foreseeable to the
actor." Jupin, supra. "To the extent that a legal standard
does exist for determining the existence of a tort duty . . . ,
it is a test of the 'reasonable foreseeability' of the
harm." Id., quoting McClurg, Armed and Dangerous: Tort
Liability for the Negligent Storage of Firearms, 32 Conn. L.
Rev. 1189, 1230 (2000).
If the pharmacist does nothing with the knowledge that
prior authorization is needed, the patient will not be able to
obtain insurance coverage for the medication. This could cause
foreseeable harm to the patient, who might not otherwise be able
to pay for potentially life-saving medications, as was the case
here. See G. L. c. 118E, § 9 (MassHealth covers persons "whose
income and resources are insufficient to meet the costs of their
medical care"). To prevent this harm, the patient must be made
aware that there is a barrier to obtaining the prescription, and
that the physician's input is necessary to overcome this
barrier.
23
Notice to the patient, however, is insufficient to
discharge the pharmacy's duty. It is particularly important in
these circumstances that the pharmacy also notify the physician
directly to avoid foreseeable harm. Correa submitted undisputed
interrogatory responses that, according to her proffered expert,
requests that a physician complete a prior authorization form
are more effective when they come from pharmacies, as opposed to
patients, in part because much of the information needed, and
the proper forms and procedures, are known only to pharmacies.
The expert also asserts that the urgency of requests from a
patient might be discounted as the patient's unnecessary anxiety
or oversensitivity, whereas the pharmacy could be viewed as a
more objective source of information.
Given present pharmacy practices, recognition of this
limited duty does not place an onerous burden on pharmacies. 11
11This duty will not unduly burden smaller, independent
pharmacies. In most instances, those pharmacies, just as
national chain pharmacies, likely use computers to run their
businesses. According to amicus curiae National Association of
Chain Drug Stores, Inc., ninety-seven per cent of prescriptions
filled in Massachusetts are paid for by insurance. Pharmacies
regularly employ specialized computer systems to navigate the
numerous health plans available to patients. See P.D. Fox, AARP
Public Policy Institute, Prescription Drug Benefits: Cost
Management Issues for Medicare, at 22 (Aug. 2000), https://
assets.aarp.org/rgcenter/health/2000_09_cost.pdf [https://perma
.cc/KZ6R-5DBA]. See also ModernMedicine Network, Health
Information Technology in the Community Pharmacy, Drug Topics
(Aug. 10, 2016), available at http://drugtopics.modernmedicine
.com/drug-topics/news/health-information-technology-community-
24
Nor does it require pharmacies to monitor or supervise
prescribing physicians. As to the latter, Walgreens argues that
Massachusetts common law does not recognize a duty to control a
third party's conduct to prevent that person from causing harm
to another, absent a "special relationship." 12 The duty we
pharmacy [https://perma.cc/RZ4W-GTC4] ("Software programs that
receive prescriptions and aid in dispensing medications are
already in wide use in community pharmacies"). To the extent
that small pharmacies operate without computers, they may use
telephone or facsimile transmissions to notify prescribing
physicians that prior authorization is needed.
12 Walgreens's reliance on the Restatement is unavailing.
The Restatement identifies two main types of special
relationships that may give rise to legal duties, neither of
which is applicable here. First, the Restatement provides that
"[t]here is no duty so to control the conduct of a third
person as to prevent him from causing physical harm to
another unless (a) a special relation exists between the
actor and the third person which imposes a duty upon the
actor to control the third person's conduct, or (b) a
special relation exists between the actor and the other
which gives to the other a right to protection."
Restatement (Second) of Torts § 315 (1965). This has no
relevance to the situation here. Second, "[a]n actor in a
special relationship with another owes the other a duty of
reasonable care with regard to risks that arise within the scope
of the relationship." Restatement (Third) of Torts: Liability
for Physical and Emotional Harm § 40(a) (2012). These "special
relationships" include
"(1) a common carrier with its passengers, (2) an innkeeper
with its guests, (3) a business or other possessor of land
that holds its premises open to the public with those who
are lawfully on the premises, (4) an employer with its
employees who, while at work, are: (a) in imminent danger;
or (b) injured or ill and thereby rendered helpless, (5) a
school with its students, (6) a landlord with its tenants,
and (7) a custodian with those in its custody, if: (a) the
25
recognize in this case, however, does not require pharmacies to
control the actions of prescribing physicians by, for example,
imposing enforcement mechanisms should a physician fail to
complete a prior authorization form. Rather, pharmacies simply
must take reasonable steps to notify patients and prescribing
physicians that, if the physician wants a patient to receive
insurance coverage for the prescribed medication, the physician
must complete a form. Additionally, Walgreens's concern that
recognizing a duty here will expose pharmacies to liability
every time payment is denied by a health insurer is unfounded.
Our decision only covers situations where insurance coverage is
denied specifically because a prior authorization form is
required. Pharmacies can protect themselves from liability in
these instances simply by notifying the patient and prescribing
physician by any reasonable means, and making a contemporaneous
record of having done so.
We decline to hold, as Correa requests, that pharmacies are
obliged to follow up with the prescribing physician until they
are certain that the physician received and will act upon the
request for prior authorization. A patient may decide at any
custodian is required by law to take custody or voluntarily
takes custody of the other; and (b) the custodian has a
superior ability to protect the other."
Id. at § 40(b). This provision is also inapplicable.
26
point to take the prescription to a different pharmacy, so the
first pharmacy cannot assume that silence on the part of the
prescribing physician means that the physician has not received
the notice. To require the pharmacist to make repeated
inquiries could also run afoul of the court's holding in Cottam,
436 Mass. at 321-322; a physician may decline to provide the
prior authorization form for numerous reasons not known to the
pharmacy.
In sum, Walgreens owed a legal duty of care to take
reasonable steps to notify both Rivera and her prescribing
physician of the need for prior authorization each time Rivera
tried to fill her prescription, but its duty extends no
further. 13
c. Accrual of prejudgment interest. General Laws c. 229,
§ 11, provides that "[i]n any civil action in which a verdict is
given or a finding made for pecuniary damages for the death,
with or without conscious suffering, of any person, whether or
not such person was in the employment of the defendant against
13Correa argues, in the alternative, that Walgreens
voluntarily assumed a duty to notify Schoeck by assuring Rivera
and her family that Walgreens's pharmacists would contact
him. Voluntary assumption of a duty is a fact-specific inquiry,
based on "the totality of the pharmacy's communications with the
patient and the patient's reasonable understanding, based on
those communications, of what the pharmacy has undertaken to
provide." Cottam, 436 Mass. at 326. In light of our holding,
we do not consider Correa's alternative argument.
27
whom the verdict is rendered or finding made, there shall be
added by the clerk of the court to the amount of the damages
interest thereon." This court previously has instructed that
G. L. c. 229, § 11, must guide decisions with respect to
prejudgment interest for wrongful death suits. Turcotte
v. DeWitt, 333 Mass. 389, 392 (1955). As Correa points out, the
statutory language indicates that accrual of interest is
mandatory, rather than discretionary. See G. L. c. 229, § 11
(interest "shall be added"); Retirement Bd. of Stoneham
v. Contributory Retirement Appeal Bd., 476 Mass. 130, 138
(2016), quoting Hashimi v. Kalil, 388 Mass. 607, 609 (1983)
("The word 'shall' is ordinarily interpreted as having a
mandatory or imperative obligation").
Notwithstanding this language, Schoeck and NENA point to
cases from other contexts in which this court has explained that
the decision to award or limit prejudgment interest requires
"balancing equities." USM Corp. v. Marson Festener Corp., 392
Mass. 334, 350 (1984). Such balancing, however, was intended to
prevent a plaintiff from obtaining an undeserved windfall. See,
e.g., St. Paul Surplus Lines Ins. Co. v. Feingold & Feingold
Ins. Agency, Inc., 427 Mass. 372, 377 (1998) (prejudgment
interest should not run from commencement of action because "the
fact that no loss was incurred until after an action was
commenced should be recognized, as a matter of fairness, in
28
order to avoid giving a party an undeserved windfall"); USM
Corp., supra at 348 (prejudgment interest not appropriate in
trade secret misappropriation action because, unlike typical
tort action, "monetary award based on the defendants' profits is
not designed to make the plaintiff whole and because . . . the
defendants' monetary gain accrued after the commencement of
[the] action"). Similarly, an award of prejudgment interest has
been denied where the plaintiff unjustifiably delayed the
progression of a case. See Peters v. Wallach, 366 Mass. 622,
629 (1975) (delay caused by plaintiffs' repudiation of
settlement agreement they had previously accepted); Currier
v. Malden Redev. Auth., 16 Mass. App. Ct. 906, 907 (1983) ("a
judge has the discretion to adjust an award of interest where a
litigant has been responsible for an unnecessary delay"); Whaler
Motor Inn, Inc. v. Freedman, 9 Mass. App. Ct. 884, 885 (1980)
(delay resulted from "plaintiff's pursuit of [an] untenable
position").
Such concerns are not present here. While Schoeck and NENA
are not responsible for the delay in this case, Correa's desire
to pursue an immediate appeal from the judgment in favor of
Walgreens did not afford her a tactical advantage. Indeed, the
motion judge decided to stay the claims against Schoeck and NENA
in the interests of "judicial economy," realizing that, if
Schoeck and NENA proceeded to trial, and Correa then succeeded
29
in her appeal concerning the claims against Walgreens, the
matter would be remanded for trial against Walgreens, resulting
in considerable duplication of effort. If Correa were to
prevail against Schoeck and NENA, interest accrued during the
appeal simply would compensate her for the loss of the use of
the money awarded during the course of the proceedings.
See Conway v. Electro Switch Corp., 402 Mass. 385, 390 (1988)
(prejudgment interest intended to "compensate a damaged party
for the loss of use or the unlawful detention of money"
[emphasis added]). Accordingly, it was error to stay the
accrual of prejudgment interest in this case.
3. Conclusion. The allowance of Walgreens's motion for
summary judgment is reversed, and the stay of the accrual of
prejudgment interest is vacated. The matter is remanded to the
Superior Court for further proceedings consistent with this
opinion.
So ordered.
LOWY, J. (dissenting). A systemic flaw contributed to the
tragic death of a young woman who was deprived of vital
medication because her pharmacy was unable to obtain a prior
authorization form from her prescribing physician as required by
her insurer. In an understandable attempt to address this flaw,
the court now imposes a nebulous duty on pharmacies to inform
physicians that a prior authorization is required for certain
medications in order to secure insurance coverage. This duty
requires pharmacies to take "reasonable steps" to notify both
the patient and the prescribing physician that a prior
authorization is required each time the patient tries to fill
the prescription, with no real guidance concerning what
constitutes reasonable steps.
I agree with the court that pharmacists have a duty to take
reasonable steps to notify patients of the need for prior
authorization every time the patient tries to fill a
prescription. I disagree, however, with the court's conclusion
that pharmacists have a duty to notify the prescribing physician
of the need for prior authorization every time the patient
attempts to fill a prescription. Imposing such a duty is
neither implied by contract, mandated by statute, nor -- until
today -- recognized by common law.
The court's desire to improve patient safety and avoid the
tragic results that occurred in this case is beyond question,
2
but I am troubled that imposing a tepid duty on pharmacies that
have no ability to control the system while simultaneously
dissipating the personal responsibility of health insurers,
physicians, and patients within the existing system will have an
adverse effect on patient safety.
The pharmacy is not the entity that requires the prior
authorization, nor does it have the legal authority to provide
it. The pharmacy is a conduit because the pharmacy submits
insurance claims for coverage. Nonetheless, the court's
decision saddles pharmacies with the legal duty to inform
physicians' offices that prior authorization is required. The
rule announced today dissipates the legal accountability and
personal responsibility of health insurers and physicians and
gives patients a false sense of security, all while imposing a
legal duty on an entity that may not actually be in the best
position to help avoid the harms that occurred in this case. 1
It appears that many pharmacies have attempted to fill this
disconnect between the providers prescribing the medications and
1The prescribing physician also has a duty to provide the
prior authorization when doing so is required by the standard of
care. The duty imposed by the court may, in certain
circumstances, blur that duty. Indeed, Carmen Correa argues
that in addition to the negligence of Walgreen Eastern Co.,
Inc., and Dr. Andreas P. Schoeck, their combined negligence
resulted in the prior authorization never being submitted to
MassHealth.
3
the insurance companies requiring the prior authorizations. I
expect that this is good business practice and the right thing
to do. The court's opinion, however, runs contrary to well-
established principles of tort law because it imposes a legal
duty on a party without the control or means to avoid the risk
and resulting harm. A system that allows health insurers to
detach themselves from both the patient and the provider, while
fostering a false sense of security among patients, cannot be
salvaged by requiring pharmacists to send a single facsimile
message or leave a lone telephone message in potentially
unmonitored voicemail at a health care provider's office.
Is leaving a voicemail message in the physician's answering
service enough? How many telephone calls are enough? Will this
duty evolve to require the pharmacy to confirm receipt of the
message? Will the pharmacist also have to inform the health
insurer that the physician has yet to provide the prior
authorization form? What must the pharmacist say to the patient
who is without medication and awaiting the prior authorization?
Will patients be lulled into a false sense of security and
potentially dissuaded from following up with their physician to
demand that the prior authorization be completed? Will every
pharmacy in the Commonwealth, regardless of the resources
available to them, need to create a document retention system to
memorialize each attempt to notify a health care provider and to
4
memorialize the nature of the health care provider's office's
response? Will independent pharmacies be able to create such
systems and remain in business? Will those pharmacies that
implement the most thorough process and train their pharmacists
to be assiduous and conscientious in seeking to obtain prior
authorization expose themselves to enhanced liability when they
fail to obtain prior authorization? Will the court's opinion
enable physicians and health insurers to delegate a portion of
their responsibilities to pharmacies to the detriment of
patients? I respectfully dissent.