Administrative Medical and Patient Safety Liability Insurance

November 19, 2018

When physicians are requested to provide protected (or seemingly protected) health information to Pharmacies, Hospitals, or other Health care organizations...Which, naturally runs counter to your trained method of protecting that information and storing it securely.

Pharmacies are increasingly demanding patients' personal health information before filling prescriptions.

Are Pharmacies playing a heavy hand?

Seems like a conflict reminiscent of the pharmacies refusing to fill birth control prescriptions for unmarried women.

There are now laws in place prohibiting that kind of discrimination. Now, the opioid crisis is initiating action that conflicts with protection. Pharmacies need to protect patients...Pharmacists tell patients that physician have to send their records to the pharmacy before they'll dispense. But, if the physician releases the information are they opening themselves up to a Hipaa violation, with civil fines and penalties:

And, possibly injuring the patient not providing the required information necessary to fill the prescription.

If the physician refuses to release the information, the patient is denied life-sustaining treatment (preventative treatment) and preventing the necessary care can also subject the physician to administrative or civil action. As a wise person once said: damned if you do and The Board of Pharmacy has advised pharmacists to "Just Say No"; to use their instincts when asked to prescribe when it doesn't feel right..(this is also discriminatory and arbitrary.)

What on earth is the answer; and who should physicians consult to navigate these issues?

The Doctors' Company - The largest physician owned medical malpractice insurance company in the country and their Executive level patient safety specialist - Vicky Rollins offers this specific, smart answer:

She points out that there are two separate issues.

  1. violating patient confidentiality by providing patient protected health (PHI) information
  2. the pharmacist/pharmacy decision not to fill a prescription without additional information.

    Answer(s) : HIPAA would not be a concern in this case as the pharmacy would be considered a current patient care provider. It is the same as two physicians currently caring for the same patient sharing information for the ongoing care and treatment of the patient. Collaborative and integrated care systems rely on the appropriate and timely sharing of clinical information among a patient’s treatment providers.

Alternatively, the physician could obtain an annual authorization from the patient(s) that allows for sharing of PHI with the patient’s pharmacy.

Shared responsibility to prescribe appropriately, carefully with thorough review and scientific support

Pharmacists have a corresponding responsibility to ensure the prescription is legal and not for purposes of abuse. Health and Safety Code §11153 states in part, “a prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course and scope of his or her professional practice. 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”. The criminal punishment for knowingly violating this law is imprisonment in county jail of up to one year and a fine of up to $20,000. Physicians and Pharmacists are under scrutiny to curb addiction rates and prevent drug overdoses.

Pharmacists have standing order to request the PHI

Additionally, the Business and Profession Code states in 733 (a)(1) “Based solely on the licentiate’s professional training and judgement, dispensing pursuant to the order or the prescription is contrary to the law, or the licentiate determines that the prescribed drug or device would cause harmful drug interaction or would otherwise adversely affect the patient’s medical condition” allows the pharmacist to request additional information or refuse to fill a prescription. Pharmacists have a role in the health and welfare of the patient and practice under laws and regulations just as physicians do.

These are the signs:

Red flags for pharmacist include:

  • Irregularities on the face of the prescription itself
  • Age or presentation of the patient (e.g. youthful patients seeking chronic pain medications)
  • Prescriptions written for unusually large quantity of drugs
  • Prescriptions written outside of the prescriber’s medical specialty
  • Prescriptions for medications with no logical connection to an illness or condition
  • Irregularities in the prescriber’s qualifications in relation to the type of medicine(s) prescribed
  • The same diagnosis code for many patients
  • The same combinations of drugs prescribed for multiple patients

Explain to local pharmacists the breadth and scope of your practice:

Likely you are providing your patients with an after-visit summary at the end of each patient encounter that the patient may be able to share with the pharmacist when the prescription is dropped off.

Help the local Pharmacy to understand the context and support of your diagnosis and prescription. If you can narrow down the pharmacy(ies) that request patient medical information, this would help. Offer to go in to meet with the pharmacist staff to explain your practice. You can request that they contact you in writing for patient information.

If the pharmacist refuses to fill a prescription without additional patient information your choices are extremely limited.

  • The patient could try a different pharmacy or
  • the practice can provide the information.

This places an additional responsibility on the practice to provide information however it does facilitate the patient receiving the medication that you as the treating physician has prescribed.

If you are named in an administrative action of this nature, The Doctors’ Insurance Agency ( works with quality medical malpractice insurance companies with the professional resources to help you.