Family can sue Walgreens over death after insurance denial, court says

Does a pharmacy have an obligation to help a patient be sure that insurance will cover a prescription? That’s the question at the heart of a landmark case that the Massachusetts Supreme Judicial Court ruled on Thursday.

Yarushka Rivera, 19, of Lowell had epilepsy and took a drug called Topamax to manage her life-threatening seizures. Her insurer, MassHealth, covered the drug, and the family was able to pick it up from their local Walgreens until June 2009 without any trouble.

A month later, after Rivera turned 19, MassHealth wouldn’t cover the cost of the drug without a doctor’s pre-authorization for insurance coverage. The pharmacy told the family about the requirement and said they would have to pay $399.99 out of pocket for the crucial medication — money they did not have, according to court documents.

While the family was unable to get the prescription filled, Walgreens said it would fax Rivera’s doctor to request the pre-authorization form.

This was routine practice, the company said in court. In fact, the Walgreens computer system was set up so that when insurance denied coverage for the drug, the pharmacist would only have to click a button to automatically fax the doctor’s office to request the form.

“The family went back to the pharmacy five separate times, and each time, the pharmacy would say that they would notify the doctor,” said the family’s attorney, Thomas M. Greene. It was unclear whether the pharmacy did so, even if it could have with a “click of a computer mouse,” as the court wrote in Thursday’s decision.

The paperwork was two pages long, according to the court, and would take less than 10 minutes to fill out. But the family never got the paper work or the medication, despite what they felt were promises from the pharmacy and despite the family’s repeated calls to the doctor’s office.

An expert testified that the practice of a pharmacist reaching out to a doctor’s office is “typical of the industry,” according to the court decision. Rivera’s doctor said in court that the office regularly gets requests for pre-authorization from pharmacies, but it’s rare for the office to get requests directly from patients.The doctor and his practice maintain that they were “never notified by pharmacists or family members about the need for prior authorization in this case,” according to the court decision.

Without her medicine, Rivera had three seizures. The third was fatal. She died in October 2009.

“The family thought it would be approved any day, because that’s what the pharmacy led them to believe,” Greene said. Otherwise, they would have gone to a different pharmacy that would have helped them get the necessary paperwork, they testified.

“It is a tragic case for the parents to lose their 19-year-old child,” Greene said. “Now, with this ruling, we are back on track and ready to go to trial.”

Walgreens declined to comment for this story, and the doctor’s practice group did not respond to a request for comment.

In October 2012 the family sued Walgreens, the doctor and his group practice, alleging wrongful death. The family was also involved in a separate lawsuit related to their daughter’s death.

After a series of legal maneuvers, in the current case, Walgreens moved for summary judgment on the grounds that it had no legal obligation to contact the doctor. Then in 2016 a court agreed with the company.

The family appealed. In March 2017, the Superior Court agreed with the lower court ruling and sided with Walgreens.

“Merely telling Ms. Rivera and her family that it would contact [her doctor] does not create a legal duty because Walgreens pharmacists expressly instructed her and her family to contact [the physician themselves] which they did apparently to no avail,” Judge Dennis Curran said at the time.

Thursday’s ruling overturns the Superior Court decision and allows the suit to go forward. Greene said he will move on the case immediately.

The Massachusetts Supreme Judicial Court wrote that Walgreens had a “limited duty to take reasonable steps to notify both Rivera and [her doctor] of the need for prior authorization each time Rivera tried to fill her prescription.”

The pharmacy is not required by law or regulation to facilitate the pre-authorization, but “it is evident that they have some role in furthering the well-being of their patients, and are well suited to assist patients with certain issues regarding their medication,” the court wrote. “The skill and knowledge of pharmacists today involve more than the dispensing of pills.”