Two of the country’s largest retail pharmacy chains have asked a federal judge to punish a Deer Park doctor, accusing the doctor of wrongly suing the pharmacies for merely faxing forms to the doctor’s office, asking him to verify patient requests for prescription refills.
On July 5, attorneys for CVS and Osco Drug filed motions for sanctions against Jay Joshi and his practice, National Pain Centers LLC, saying the lawsuits the doctor brought against them in May conflate standard pharmacy business practices with advertising – and the doctor should know the difference.
“This action lacks any conceivable, non-frivolous basis,” the pharmacies wrote in their nearly identical motions for sanctions, filed by the same attorneys who represent them both. “It is neither rooted in law nor common sense. Its sole purpose is to extort money…”
CVS and Osco are both represented in the action by attorneys David S. Almeida, Courtney C. Booth and Mark S. Eisen, of the firm of Benesch, Friedlander, Coplan & Aronoff LLP, of Chicago.
David S. Almeida
In May, Joshi and National Pain Centers filed suit in Chicago federal court against the pharmacies. The first lawsuit was filed against Osco, followed by similar actions a week later against the country’s two largest retail pharmacy chains, CVS and Walgreens.
Walgreens is represented by different lawyers, as federal court records indicate that company is represented by the firm of Drinker Biddle & Reath LLP, of Chicago. As of July 6, Walgreens had not joined Osco and CVS in requesting sanctions.
The case against all three pharmacy retailers leveled similar charges, accusing the pharmacies of violating the federal Telephone Consumer Protection Act, which prohibits the transmission of unsolicited faxed advertisements.
In his lawsuits, filed through attorney David B. Levin, of the Law Offices of Todd M. Friedman P.C., of Northbrook, Joshi alleged the pharmacies would fax dozens of messages to his office each day, which he claimed were intended to solicit National Pain Centers and its doctors to write new prescriptions as a means of increasing business for the pharmacies. Joshi alleged the faxes addressed prescriptions not originally written to allow patients to obtain refills.
“The prescriptions were written in this manner for good reason,” the complaint stated, “as many of them were written for controlled substances, including but not limited to dangerous opioid pain medications.”
While the lawsuits remain pending, and the courts have not rendered any judgment on the merits of the case, or entertained any motions to dismiss, the pharmacies assert Joshi should still be sanctioned for suing over regular business processes, separate from any attempts to market or advertise.
The motion notes the form faxed by Osco, for instance, contains only two parts, a section listing “the prescriber, patient and pharmacy information” and another section which “provides an area for the prescriber to authorize the refill of the medication.” It includes no language, logos or images that “’advertises the commercial availability’ of anything,’” the motion said.
“There is simply no basis to bring suit over a prescription refill authorization communication - the kind of communication fundamental to and commonplace in pharmacies across the country - nor is there any arguable basis for a change in the law,” the pharmacies’ attorneys asserted.
The motions for sanctions allege the lawsuits improperly burden the courts and defendants, as the lawsuits’ central claim – that pharmacies’ prescription refill verification requests should count as advertising under the TCPA law – fall well short under the law’s definitions of the term.
“Had Plaintiffs’ counsel consulted the TCPA’s definition of an advertisement, as well as the (Federal Communications Commission’s) related interpretations, it would have become abundantly clear that there is no legal support whatsoever for Plaintiffs’ novel position that a prescription refill fax is an actionable advertisement.
In their motions, the pharmacies ask the court to order the plaintiffs to pay their legal fees, and to dismiss the lawsuits.