NEW: Errant ED Prescription Handling Gets Pharmacy In a HIPAA Trouble With The Arizona Supreme Court (READ Opinion)

All joking aside, pharmacies have to be extra-careful when they're handling prescriptions to treat ED - whether the scrip was errant or not. In a unanimous opinion from the Arizona Supreme Court today, Costco cannot get a lawsuit for negligent disclosure of health information quickly dismissed just because the plaintiff did not allege that the pharmacy acted in bad faith when they asked his ex-wife if she wanted to also pick up an already-canceled ED prescription.

Arizona law provides healthcare providers a good faith exemption from being liable for improperly disclosing medical information. But just because the man did not allege bad faith or rebut the presumption of good faith in his Complaint does not allow the judge to immediately toss it. In this case, that is what the Superior Court judge had done and what the Court of Appeals had approved.

This case arose from a series of errors - whether good faith or not. The plaintiff's healthcare provider had given the patient a sample of a ED treatment and had refilled a different prescription. However, just in case, scrips for both were sent to the pharmacy. The patient canceled the ED prescription. The next month, he called in and re-canceled it, and the next day he asked if his ex - who he was exploring reconciliation - could pick up his *regular* prescription. The eager pharmacy tried to give the ex-wife both the regular and the canceled prescriptions, leading to both joking at the pharmacy and to her deciding not to reconcile. 

As if that was not enough, the ex told their children and friends about the incident. And, Costco acknowledged to the man that they had violated his HIPAA privacy rights.

Nonetheless, the man did not make any allegations of bad faith in his Complaint. And, Costco claimed that that means he admitted that they qualify for Arizona's immunity based on the presumption of good faith.

Writing for five members of the Court*, Justice Bill Montgomery said a plaintiff does not need to anticipate an affirmative defense to withstand a motion to dismiss, and that discovery may shed light on whether or not there was good faith.

The Court could have stopped there, but decided to provide some guidance - for this case and others - on what constitutes "good faith" in Arizona's immunity statute. Citing previous cases, you need an “honest belief, the absence of malice and the absence of a design to defraud or to seek an unconscionable advantage.”

Given the facts of the case and the ex-wife's reaction, that may be the Supreme Court's way of saying "yes, you won this appeal and we didn't dismiss the case. But, it may be time to move on."

* Justices Gould and Beene recused themselves... for reasons unclear.

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