LOS ANGELES (Legal Newsline) - A physician who was cut off by CVS after his hydrocodone prescriptions surged nearly fivefold lost his bid to force the pharmacy chain to fill his scripts, after a California appeals court said he has to seek redress from state regulators first.
Dr. Kenneth Bradly sued the national chain in June 2020 after CVS told him it would no longer dispense controlled substances to his patients. The doctor, who operates a pain clinic frequented by patients enrolled in health maintenance organization insurance plans, had repeatedly triggered the company’s suspicious prescription monitoring system, including after his opioid scripts jumped from 10,000 pills to almost 50,000 between March and May of 2020.
Dr. Bradley sought an injunction forcing CVS to honor his prescriptions, accusing the company of unfair competition, tortious interference and racial discrimination against his minority patients. The trial court refused his request for a temporary restraining order, and after a September hearing ruled that his complaint must be heard by the State Board of Pharmacy first.
The Second District Court of Appeals upheld his ruling, finding that the Pharmacy Board had primary jurisdiction over his complaint. In a May 28 decision, the appeals court said the national opioid crisis heightened the importance of allowing experts at the regulatory agency assess Dr. Bradley’s complaint before bringing it before a judge. The Pharmacy Board is authorized to issue fines and order pharmacies to follow regulations, either by filling authorized prescriptions or refusing to fill improper ones.
“The trial court reasonably concluded that the Board has more experience in evaluating a pharmaceutical licensee’s responsibilities in this context,” the appeals court ruled. Widespread problems with overprescribing and opioid diversion mean a “uniform approach” is required to determine whether a physician is violating the rules, the court said, especially since CVS, like other pharmacy chains, relies upon computerized systems to “flag” suspicious prescriptions.
In 2018 and 2019 CVS contacted Bradley, a licensed physician with a pain management clinic, about his prescriptions for a hydrocodone called Norco. Bradley told the pharmacy that Norco was a low-powered opiate with little risk of abuse. In April 2020, however, a CVS pharmacist told Bradley she wouldn’t fill his prescriptions unless he provided plans to “taper off” his patients from opiates.
Dr. Bradley refused to comply, and so the pharmacist refused to fill his prescriptions. A senior CVS executive followed up the next month, asking the doctor to explain a spike in prescriptions in March and April of that year. Dr. Bradley said he had “temporarily carried the prescription load” for other practitioners because he was the only one authorized to issue electronic scrips while Los Angeles residents were under Covid-19 stay-at-home orders.
The doctor’s explanation didn’t satisfy CVS, which told him it would cease filling his controlled-substance prescriptions as of June 25. The chain cited its prescription monitoring system, which had flagged his prescribing patterns “multiple times” since 2015. CVS identified him as the top hydrocodone prescriber among the 10 locations that most frequently serve his patients.