Question about hypodermic needle/syringe laws in Texas

[Apotheker2015]

Just curious on this, but do you think that an attorney won't come after you for refusing to sell insulin syringes to an actual diabetic patient who ends up in DKA or dies from complications of not being able to obtain required items for a medication required to sustain life because of a general opinion you made of this person. I'm in EMS & Law Enforcement and I would much rather a pharmacist take a chance & sell the syringes to a potential junkie than deprive someone who truly needs the syringes to sustain life. I think there would be a huge case of liability for negligence if a diabetic suffered illness or death from refusal.

A patient with diabetes has no trouble reciting what type of insulin they're on, how many units, how often, etc etc. All you have to do is ask them and they will tell you. You can look at their profile. Or you can ask them for the name of their prescriber, or any other pharmacies where they fill their medications. Patients know you're doing your job, and they will tell you. If you ask a drug user, they go blank. "Oh it's for my grandma" "They're for my cat". LOL

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[BidingMyTime]

For there to be liability there must be a breach of duty that was violated. Pharmacists do not have any duty to sell syringes. You can't sue for negligence when they're acting in the normal course of business

Pharmacists do not have any legal duty to give out free meds either, but a recent case said a pharmacy could be sued over the death of a patient because her ins wasn't paying for her seizure medication.

 

[BenJammin]

Pharmacists do not have any legal duty to give out free meds either, but a recent case said a pharmacy could be sued over the death of a patient because her ins wasn't paying for her seizure medication.

The pharmacy was sued because they violated the duty of care by saying they had no duty to notify the physician that a patient's medication required a prior authorization. Just a bit apples and oranges.

 

[owlegrad]

The pharmacy was sued because they violated the duty of care by saying they had no duty to notify the physician that a patient's medication required a prior authorization. Just a bit apples and oranges.

And before that case would you have said we have a duty to notify the physician that a patient’s medication required a prior authorization? I wouldn’t have.


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[BenJammin]

And before that case would you have said we have a duty to notify the physician that a patient’s medication required a prior authorization? I wouldn’t have.


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I would say yes. Why wouldn't it be part of the standard of care? A simple notification to the prescriber is too difficult?

 

[owlegrad]

I would say yes. Why wouldn't it be part of the standard of care? A simple notification to the prescriber is too difficult?

Is simply selling needles too difficult? The difficulty has nothing to do with it. Why is the pharmacy obligated to tell the prescriber if a medication requires a prior authorization? That makes no sense at all.

If it is standard of care to notify physicians about prior authorizations, perhaps it is also part of the standard of care to let a patient buy clean needles?


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[beautifulrobot]

Is simply selling needles too difficult? The difficulty has nothing to do with it. Why is the pharmacy obligated to tell the prescriber if a medication requires a prior authorization? That makes no sense at all.

If it is standard of care to notify physicians about prior authorizations, perhaps it is also part of the standard of care to let a patient buy clean needles?


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If I recall correctly, I thought the pharmacy had a duty to notify the prescriber in this specific case because they told the patient that was what they were going to do. i.e. the moment the pharmacy staff told the patient they would let the prescriber know, they then had an obligation to follow through on that.

 

[owlegrad]

If I recall correctly, I thought the pharmacy had a duty to notify the prescriber in this specific case because they told the patient that was what they were going to do. i.e. the moment the pharmacy staff told the patient they would let the prescriber know, they then had an obligation to follow through on that.

The part that confuses me is how was it proven that they didn't inform the prescriber. Surely they had sent a fax or made a phone call. Really that whole case was perplexing to me. But you could be right, perhaps if the pharmacy had simply told the patient to tell the doctor their self the pharmacy wouldn't have been at fault.

 

[BenJammin]

Is simply selling needles too difficult? The difficulty has nothing to do with it. Why is the pharmacy obligated to tell the prescriber if a medication requires a prior authorization? That makes no sense at all.

If it is standard of care to notify physicians about prior authorizations, perhaps it is also part of the standard of care to let a patient buy clean needles?


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Because selling syringes OTC isn't what I'm licensed to do, it's no different from selling that bottle of Advil PM. As to the bolded statements, I really don't know how to respond to that. When you say you're going to do something, don't you usually do it? When you tell a patient that you're going to fax the PA to the doctor, you should do it.

 

[BenJammin]

The part that confuses me is how was it proven that they didn't inform the prescriber. Surely they had sent a fax or made a phone call. Really that whole case was perplexing to me. But you could be right, perhaps if the pharmacy had simply told the patient to tell the doctor their self the pharmacy wouldn't have been at fault.

The pharmacy told the court that they didn't need to prove it because they aren't required to inform the doctor about the PA.

 

[beautifulrobot]

The part that confuses me is how was it proven that they didn't inform the prescriber. Surely they had sent a fax or made a phone call. Really that whole case was perplexing to me. But you could be right, perhaps if the pharmacy had simply told the patient to tell the doctor their self the pharmacy wouldn't have been at fault.

In addition to what ben pointed out, i think the problem was that the dr's office claimed they never received notice from the pharmacy, and the pharmacy was not able to provide documentation that they did actually submit a fax/provide notice. So it was more that they couldnt prove that they actually did fax, rather than there being any proof that they didnt fax, that is, an absence of evidence rather than evidence of absence.

 

[owlegrad]

In addition to what ben pointed out, i think the problem was that the dr's office claimed they never received notice from the pharmacy, and the pharmacy was not able to provide documentation that they did actually submit a fax/provide notice. So it was more that they couldnt prove that they actually did fax, rather than there being any proof that they didnt fax, that is, an absence of evidence rather than evidence of absence.

But why should the pharmacy need to prove it to begin with? That is what I don’t understand. Why should the burden of proof be on the pharmacy to prove they sent a fax that they shouldn’t have been obligated to send in the first place?

And I still think if the pharmacy is obligated to prove they notified the MDs office about a PA, it isn’t a stretch to think that a judge or jury will decide the pharmacy has an obligation to sell needles in the normal course of business. Why not?


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[Sine Cura]

How do you prove any verbal conversation or communication? What is the retention period of phone calls if any? Fax logs?

The documentation part is somewhat solved by submitting everything via CoverMyMeds. That way these ****tily managed offices can't use the excuse that "we never got a fax."

 

[beautifulrobot]

But why should the pharmacy need to prove it to begin with? That is what I don’t understand. Why should the burden of proof be on the pharmacy to prove they sent a fax that they shouldn’t have been obligated to send in the first place?

And I still think if the pharmacy is obligated to prove they notified the MDs office about a PA, it isn’t a stretch to think that a judge or jury will decide the pharmacy has an obligation to sell needles in the normal course of business. Why not?


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right, and that's the controversy in this case. some judges think the pharmacy does not have the burden of proof because they don't have an obligation to begin with, while other judges think that the pharmacy could be obligated since it is something that they routinely do as part of normal course of business. it would be different if their story was, "we never told the patient we would fax the doctor, because that's not something we ever do" versus "we told the patient we would fax the doctor and we did, but we can't prove it, but we dont have to prove it, because we weren't obligated to tell the doctor, even though we told the patient we would tell the doctor" - to me, that's a much stickier situation (and also to the courts, apparently).

I think one could make the argument that limiting access to syringes by keeping them behind the counter, even if no law mandates it, could potentially be used to make a case that the pharmacy then has a certain obligation to sell syringes, if otherwise denying the sale of needles leads to harm to an individual. I am not a lawyer, and I don't know if that argument has any legal standing in any jurisdiction. The whole field of withholding or withdrawing treatment is a huge legal minefield, and although I think for the most part it is very unlikely for a pharmacist to ever face any legal liability for denying the sale of syringes, I wouldn't say it's completely out of the realm of possibility (especially if you have no legal mandate to restrict the sale of syringes to begin with). I suppose the pharmacy can argue they don't have to sell syringes to anyone, but if they do decide to sell syringes to some people but not all people, I could see the potential for legal issues there.

 

[BidingMyTime]

Because selling syringes OTC isn't what I'm licensed to do, it's no different from selling that bottle of Advil PM. As to the bolded statements, I really don't know how to respond to that. When you say you're going to do something, don't you usually do it? When you tell a patient that you're going to fax the PA to the doctor, you should do it.

I'm not licensed to deal with a patient's insurance problems either. In fact, my license allows me to open a cash only pharmacy and refuse to take any insurance cards. (not saying that is financially viable, but legally I can do that.)

I disagree with the court's ruling in this case, but then I've only read brief on-line articles about it, maybe I would feel different if I was the judge and had heard all the evidence. Maybe Walgreen's just needed better defense lawyers.

Yes, as a matter of ethics, people should do what they they say they do, but being unethical is not necessarily against the law. I could date date 2 chicks at once, or maybe 2 guys, and I could tell them both that they were the only person I was dating. I wouldn't do that, because I would consider it unethical, but it certainly wouldn't be illegal if I did. But apparently the court is saying there is a legal obligation for the pharmacy to follow through with the verbal assurance that they would fax the doctor (and maybe the pharmacy did, they just couldn't prove it the court's satisfaction)--this seems to me to be a new legal obligation being placed on pharmacies, and that it might be better if pharmacies didn't make any promises. IE they should tell the patient that they might fax the doctor if they have time, but they can't guarantee the doctor will get the fax, so the patient should take the responsibility of calling the doctor themselves.

 

[beautifulrobot]

I'm not licensed to deal with a patient's insurance problems either. In fact, my license allows me to open a cash only pharmacy and refuse to take any insurance cards. (not saying that is financially viable, but legally I can do that.)

I disagree with the court's ruling in this case, but then I've only read brief on-line articles about it, maybe I would feel different if I was the judge and had heard all the evidence. Maybe Walgreen's just needed better defense lawyers.

Yes, as a matter of ethics, people should do what they they say they do, but being unethical is not necessarily against the law. I could date date 2 chicks at once, or maybe 2 guys, and I could tell them both that they were the only person I was dating. I wouldn't do that, because I would consider it unethical, but it certainly wouldn't be illegal if I did. But apparently the court is saying there is a legal obligation for the pharmacy to follow through with the verbal assurance that they would fax the doctor (and maybe the pharmacy did, they just couldn't prove it the court's satisfaction)--this seems to me to be a new legal obligation being placed on pharmacies, and that it might be better if pharmacies didn't make any promises. IE they should tell the patient that they might fax the doctor if they have time, but they can't guarantee the doctor will get the fax, so the patient should take the responsibility of calling the doctor themselves.

For the most part I agree with you, although I do want to point out that most (if not all) boards of pharmacy have some kind of language that license holders must be of "good moral character" - so if you are a lying liar who lies all the time, even if it isn't illegal per se, the board could make a case to revoke your license if they really wanted to.

 

[BenJammin]

I'm not licensed to deal with a patient's insurance problems either. In fact, my license allows me to open a cash only pharmacy and refuse to take any insurance cards. (not saying that is financially viable, but legally I can do that.)

I disagree with the court's ruling in this case, but then I've only read brief on-line articles about it, maybe I would feel different if I was the judge and had heard all the evidence. Maybe Walgreen's just needed better defense lawyers.

Yes, as a matter of ethics, people should do what they they say they do, but being unethical is not necessarily against the law. I could date date 2 chicks at once, or maybe 2 guys, and I could tell them both that they were the only person I was dating. I wouldn't do that, because I would consider it unethical, but it certainly wouldn't be illegal if I did. But apparently the court is saying there is a legal obligation for the pharmacy to follow through with the verbal assurance that they would fax the doctor (and maybe the pharmacy did, they just couldn't prove it the court's satisfaction)--this seems to me to be a new legal obligation being placed on pharmacies, and that it might be better if pharmacies didn't make any promises. IE they should tell the patient that they might fax the doctor if they have time, but they can't guarantee the doctor will get the fax, so the patient should take the responsibility of calling the doctor themselves.

True but irrelevant. By accepting the patient's insurance you accepted a duty. When you, a professional, accept a duty like that, it's your obligation to fulfill that duty. This is why physicians don't give medical advice to people who ask them questions as they wait in line at the DMV. When you accept that duty you have to go all the way, otherwise you're liable.

 

[Life Learner]

For there to be liability there must be a breach of duty that was violated. Pharmacists do not have any duty to sell syringes. You can't sue for negligence when they're acting in the normal course of business

 

[Life Learner]

That is not the main reason why they are kept behind the counter- Syringes at most cost 30 dollars for a box of 100- We have Diabetes Meters that cost 80 that are kept on the OTC aisle and I work in a high theft area. If Illinois has that law that's fine, but Texas has no such law and until they do, I personally do not sell them without proof f need or use.

 

[Life Learner]

Please let me understand. There are no laws requiring any proof or need of use for insulin syringes, no FDA, DEA or other governmental entity involving themselves in areas they do not have a full understanding of? Yet pharmacists feel they have a right to deny the sale of syringes based on their judgement of a pts appearance? "Track marks" that could be from plasma donations to scabbies to a multitude of conditions. Impaired behavior? Brain injury, neurologic disease also. Unless pharmacist are now trained to do in depth physical assessments, this is not a " pharmacist judgment " situation. Abide by your companies rules, respect the state laws that were assessed,researched & decided by a committee of lawmakers, including clinical professionals. A pharmacist refusing to dispense syringes when they feel like it is no different than a pharmacist refusing to dispense BC pills based on his moral beliefs, mind you they are used for many more conditions that are frankly not their business. Some are started to overstep their authority.

 

[owlegrad]

Please let me understand. There are no laws requiring any proof or need of use for insulin syringes, no FDA, DEA or other governmental entity involving themselves in areas they do not have a full understanding of? Yet pharmacists feel they have a right to deny the sale of syringes based on their judgement of a pts appearance? "Track marks" that could be from plasma donations to scabbies to a multitude of conditions. Impaired behavior? Brain injury, neurologic disease also. Unless pharmacist are now trained to do in depth physical assessments, this is not a " pharmacist judgment " situation. Abide by your companies rules, respect the state laws that were assessed,researched & decided by a committee of lawmakers, including clinical professionals. A pharmacist refusing to dispense syringes when they feel like it is no different than a pharmacist refusing to dispense BC pills based on his moral beliefs, mind you they are used for many more conditions that are frankly not their business. Some are started to overstep their authority.

Thanks for stoping by, we really appreciate your input.

 

[BenJammin]

Please let me understand. There are no laws requiring any proof or need of use for insulin syringes, no FDA, DEA or other governmental entity involving themselves in areas they do not have a full understanding of? Yet pharmacists feel they have a right to deny the sale of syringes based on their judgement of a pts appearance? "Track marks" that could be from plasma donations to scabbies to a multitude of conditions. Impaired behavior? Brain injury, neurologic disease also. Unless pharmacist are now trained to do in depth physical assessments, this is not a " pharmacist judgment " situation. Abide by your companies rules, respect the state laws that were assessed,researched & decided by a committee of lawmakers, including clinical professionals. A pharmacist refusing to dispense syringes when they feel like it is no different than a pharmacist refusing to dispense BC pills based on his moral beliefs, mind you they are used for many more conditions that are frankly not their business. Some are started to overstep their authority.

My company, my rules.