Supreme Judicial Court of Massachusetts, Middlesex
Heard: February 6, 2018.
action commenced in the Superior Court Department on
October 19, 2012.
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.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
M. Greene (Michael Tabb & Simon L. Fischer also present)
for the plaintiff.
H. Murray for Walgreen Eastern Co., Inc.
A. Weigand, for Andreas P. Schoeck & another, was present
but did not argue.
following submitted briefs for amici curiae:
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.
G. Wilkinson & Victoria Pulos for Health Law Advocates,
Inc., & others.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
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 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.
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
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.
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 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.
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
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 month, Rivera began
seeing a neurologist, Schoeck, who agreed that she should
continue taking Topamax.
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
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 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://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.
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.
prescription coverage is denied by an insurer due a need for
prior authorization, Walgreens's computer system
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.
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 facsimile to the insurer on the same day that she
receives the notice.
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.
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 recommended that Rivera's family
contact Schoeck about the need for prior authorization.
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.
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 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