SUMMARY - Pharmacist Rajendra Bhat says Medco is putting the public at risk with unrealistic demands on their employees. Medcos quotas dont give pharmacists enough time to check for errors with prescriptions he said which could harm or even kill a patient. Now Bhat is risking his own health to draw attention to the issue with a hunger strike.
Tampa Pharmacist Challenges Medcos Policy on Filling Prescriptions Announces Lawsuit and Hunger Strike
July 6 2010. TAMPA Florida For pharmacist Rajendra Bhat the main reasons for his lawsuit against Medco are not about money.
For him its about professional ethics. Its about the honor of his profession. Most importantly its about the health and safety of the public. "We are asking the court to order Medco to stop interfering with pharmacists judgment" Bhat said.
In short Bhat says that Medcos quota system which requires their pharmacists to process 45 to 55 prescriptions an hour is too much. Pharmacists are being forced to cut corners on public safety he said.
When faced with a prescription that might not be legit or where the doctors intention isnt clear to them Medcos pharmacists have to make a difficult choice.
They can call the doctor to straighten out any issues but that takes time and keeps them from making quota.
Or they can choose not to call the doctor and do their best to figure things out on their own in little over a minute. The pharmacist still makes quota but risks the patients health and leaves him open to civil liability.
It is out of his concern for Medcos customers that Bhat initiated a suit against them. It is why he is appealing 13th Judicial Circuit Court Judge Sam Pendinos summary judgment in favor of Medco. It is also why he is risking his own health with a hunger strike to draw attention to what he says are increased risks with the lives of Medco customers risks that he calls "criminal negligence."
The Issues Involved
Pharmacists are under a lot of pressure to make sure all prescriptions are legit and that they are accurate. Case law state and federal statutes and the guidelines set forth by the Code of Ethics of the American Pharmacists Association all require the pharmacist to contact the doctor whenever they have a question regarding a prescription.
Florida Statute 465.026(1)(b) clearly states that the pharmacist must "Determine that the prescription is valid and on file at the other pharmacy and that the prescription may be filled or refilled as requested in accordance with the prescribers intent expressed on the prescription."
Part (1)(e) of the statute goes on to say that the pharmacist must "Obtain the consent of the prescriber to the refilling of the prescription when the prescription in the dispensing pharmacists professional judgment so requires. Any interference with the professional judgment of the dispensing pharmacist by any pharmacist or pharmacy permittee or its agents or employees shall be grounds for discipline."
In a situation similar to Bhats a federal district court entered the following order in the case of United States of America v. Merck Medco Managed Care LLC Civil Action No. 00-737 (D. Pa.) which required Medco (then known as Merck Medco) to instruct all pharmacists of their duty to abide by the Code of Ethics of the American Pharmacists Association. The judge also ordered that no Medco supervisor or manager shall instruct any employee to engage in conduct which is inconsistent with the APhAs Code of Ethics or State Pharmacy Law and regulations.
Pharmacists take their responsibility very seriously Bhat said. According to several studies and opinion polls pharmacists are considered to be among the most trustworthy and reliable of professionals.
Its a trust Bhat wants to preserve.
Bhats History with Medco
Bhat earned a Masters degree in pharmacology in his native India from Bangalore University in 1985. He interned at a Wal-Mart pharmacy when he came to the U.S. in 1994. The following year he was the retail pharmacy manager at a Winn-Dixie store.
Bhat came to Medcos Tampa facility then located at Sabal Park in 1995. When he started things went well. The companys local pharmacists checked over filled and refilled prescriptions. The facilities were eventually expanded opening a second Tampa location in Netpark and consolidating operations from its office on Race Track Road.
But starting in 2002 and continuing through 2003 around the time the company was spun off from Merck and became a publicly traded company Bhat said he and other pharmacists were under pressure to fill more prescriptions in less time.
"They would start out saying we should fill 35 prescriptions in an hour" Bhat recalled. "Then the following week they would say we should fill three more an hour."
This went on until the pharmacists were asked to fill 45 to 55 prescriptions an hour. For Bhat and many of his co-workers that was just too much. As pharmacists they are legally and ethically obligated to make sure every prescription is accurate and authentic.
"It is the responsibility of a pharmacist to make sure it is a legal prescription" Bhat said.
If there are any questions at all about the doctors intent when prescribing a drug or if the prescription is simply unclear usually because of problems reading handwriting the pharmacist needs to call the doctor who prescribed the medicine.
But calling doctors slows down the process keeping pharmacists from making Medcos quota Bhat said. Pharmacists were threatened with disciplinary action up to and including firing if they failed to make quota or made too many doctors calls.
Many Medco pharmacists simply decided that they didnt want to work under such conditions and quit Bhat said. While he respects them for their principled stand and the moral reasons they left the company Bhat said he chose to stay and fight.
"The only reason I stayed was because this is not right!” Bhat declared “Somebody has to stand up to this."
Meanwhile more and more mistakes were made under the new quota imposed by Medco. Originally the local Medco facility had an error rate of 25 errors for every 1 million prescriptions filled. By 2004 that rate was up to 300 errors for every 1 million prescriptions a twelve-fold increase!
Questions about prescriptions come up more often than most people realize Bhat said especially since many doctors still write out prescriptions by hand. Even a small problem like misreading a number on a prescription can have tragic consequences for a patient.
"For example sometimes its hard to tell if a doctor wrote a number 2 or a number 7" Bhat said. "If I were filling a prescription for Coumadin which is a blood thinner and I gave someone 7 mg instead of 2 mg he could bleed to death."
Doctors handwriting isnt as much of a problem in a retail pharmacy Bhat said. In a retail setting such as a local Wal-Mart or Walgreens the pharmacists become familiar with the local doctors. Over time they learn to figure out a given doctors handwriting.
But with mail-order facilities like Medco orders for prescriptions come from all over the country. As a result they dont develop that relationship or that familiarity with the doctor who writes the prescription.
Bhat Seeks Solutions Working within and outside the Company
After appealing to his immediate supervisors and repeated attempts to solve the problems
locally he took his case higher up the company ladder. On February 14 2003 Bhat sent a letter to John Long Medcos vice president of professional practice.
Later that year in June Bhat and other pharmacists attended the Florida Board of Pharmacy meeting in Tampa. The Board of Pharmacy suggested Florida Statute Chapter 465.026 as a remedy and suggested that they file a formal complaint to the Florida Department of Health.
Following that advice Bhat and 43 other Medco pharmacists wrote and signed a letter to the Department of Health. That letter was the beginning of the end of Bhats relationship with Medco.
"I didnt have any disciplinary actions taken against me until I brought this to the attention of the Florida Board of Pharmacy" Bhat said.
Meanwhile Bhat still continued to make his case within the company writing twice to Medco CEO David Snow beginning February 2004. He had two meetings with then-Medco Ethics Officer Michael R. Clarke and Medcos Director of Pharmacy Practices Cal Wasdyke in March and May 2004. No solution was found.
In June 2004 Bhat said local Medco executives Ken Daniels and Willis Dingle also threatened Bhat with disciplinary action which may lead to termination if Bhat continued to raise concerns about Medcos policies. And they threatened retaliation.
With nowhere else to go within the company Bhat again went outside the company including to the U.S. Drug Enforcement Agency and the U.S. Senate Finance Committee. In a letter to Sen. Chuck Grassley (R-Iowa) Bhat offered to testify under oath about Medcos practices.
Medco Retaliates against Bhat
In response Medco retaliated against Bhat on October 8 2004. Medco Officials Len Fusaro and Ken Daniels threatened him with disciplinary action up to and including termination.
On January 24 2005 Bhat wrote the DEA about how Medco was not complying with rules and regulations related to the Class II process.
On January 31 2005 Fusaro and Medco Chief Pharmacist Cindy Godfrey made the same threats against Bhat.
Class II also known as Schedule II are drugs with a high abuse risk but also have safe and accepted medical uses in the United States. Schedule II drugs can cause severe psychological or physical dependence. Schedule II drugs include certain narcotic stimulant and depressant drugs. Some examples are morphine and oxycodone.
On Feb. 12 2005 Bhat wrote the U.S. Senate Committee on Finance. He followed that with another letter to the committee on Apr. 30 2005.
Medco responded by firing Bhat on July 1 2005.
Continuing the Fight
When Bhat was fired in 2005 he lost not only his job but his benefits and stock options as well. It also resulted in damage to his personal reputation.
"For me my personal reputation has been hurt" Bhat said. "The pharmacist community is very small so they all know Ive been fired and theres a stigma attached to it. For months I had a problem even getting interviews for jobs.
"Its a matter of principle" Bhat said. "I want to clear my name. My performance was better than so many of the other pharmacists" Bhat said.
Bhat Seeks Remedy in the Courts
When appeals to Medco and the appropriate state and federal entities failed and after being terminated from Medco Bhat decided that the only course of action left to him was through the courts. With his attorney Randall Reder Bhat sued Medco for violating Floridas private-sector Whistle Blower Act (Florida Statutes section 448.102).
Reder said he and Bhat go back several years. “I am impressed by Mr. Bhat’s integrity says Reder. He is committed to seeing the Medco matter through even though he stands to lose financially even if successful.” Bhat believes that if Medco isnt stopped the same emphasis on speed over quality could spread to the rest of the pharmaceutical industry.
"When Medco does things like this the other mail-order companies will look to them to see what they can get away with" Bhat said. "And there will over a period of time be more and more errors committed by pharmacists."
Sadly the case didnt get very far. Initially Circuit Judge Sam Pendino ordered a non-jury trial with a pre-trial conference scheduled for January 21 2010 (Vol. 3 pp 500-03). Medco responded with a motion for summary judgment (Vol. 3 pp. 516-31) which was heard on January 20.
Judge Pendino initially denied the motion. However at the pretrial conference Pendino told both parties that he wanted to reconsider his ruling and scheduled a hearing on Medcos motion for January 22.
At that hearing Pendino reversed himself and entered a Summary Final Judgment against Bhat.
Medco is now seeking attorneys fees from Bhat of $1 million. Meanwhile Reder is appealing to the 2nd District Court of Appeal to vacate Pendinos order and remand the case back to a lower court to allow it to be heard.
Bhat Makes the Ultimate Protest
Following a meeting with his own doctor Bhat began his hunger strike on Monday July 5 to call attention to Medcos practices. He knows it sounds like an extreme form of protest but Bhat said he believes he has few options left.
The hunger strike will continue for an "indefinite" period Bhat said.
""I have been very very patient" Bhat said. “Ive tried everything! What more can I do? Write more letters?”
"The public should know what is going on and make Medco have to defend their process" Bhat said. "If they want to continue to defend their policies they should have to justify them to their shareholders and to the public at large.
"I will carry on my fight till my last breath in defense of the health safety and lives of all the Medco patients."
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FOR MORE INFORMATION:
Dawn Hudson Publicist
Randall O. Reder P.A.
Florida Bar No. 264210
1319 W. Fletcher Ave.
Tampa FL. 33612-3310
Fax; (813) 265-0940
Fomer Medco Employees willing to speak in relation to this story
Robert F. Hendricks
St. Petersburg FL.
Frank A. Albertson
To interview Rajendra Bhat contact his publicist or his attorney.
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Randall O. Reder
Judge Sam Pendino