Bad fact patterns sometimes make bad law. And sympathetic plaintiffs who experience unfortunate outcomes can lead to decisions that stray from established precedent. Today’s decision from the Northern District of Oklahoma addresses a sad fact pattern, but the court conducted a rigorous Erie analysis and concluded that the Oklahoma Supreme Court would not recognize a duty that pharmacies must fill prescriptions.  Scholl v. Walgreens Specialty Pharm., LLC, 2025 WL 950866 (N.D. Okla. Mar. 28, 2025). 

Plaintiffs were the parents of a minor child who suffered from a rare disease that could lead to life threatening symptoms. Significant, surgical treatment (most likely a hysterectomy) offered a better prognosis, but the plaintiffs opted to manage their daughter’s condition with a prescription medication until she was old enough to participate in the decision about permanent treatment options. The minor child’s physician submitted a prescription to a pharmacy, but it took forty days for the prescription to be filled. Although the facts as to why the delay happened were disputed, they centered around a preauthorization process required by the health insurer. During the forty-day period when the prescription was not filled, the minor child experienced significant health complications that required hospitalization and treatment.  Plaintiffs sued the pharmacy claiming that the delay in filling the prescription resulted in the minor child’s injuries.

The court began its analysis by identifying the threshold question: did the pharmacy have a duty to fill the minor child’s prescription? If no duty, the plaintiffs’ claims—which all sounded in negligence—would not survive summary judgment.

There were no decisions from the Oklahoma Supreme Court on point, so the court looked to the relevant statutory, regulatory and lower court authority to guide its Erie analysis.  It started with Oklahoma’s Pharmacy Act, which governs the duties and obligations of pharmacists and pharmacies. Id. at *4. The statute was silent as to whether a pharmacy or pharmacists has a duty to fill a prescription, but by the use of “may” rather than “must” in several instances, the statute suggested that pharmacies did not have an affirmative duty pursuant to which they “must” fill prescriptions.  Id.

Oklahoma’s State Board of Pharmacy enacted regulations that govern the practice of pharmacy and the “dispensing of drugs and medicines.” Id. at *5. Those regulations identified a number of things that pharmacies and pharmacists “must” do, such as complying with laws, maintaining patient confidentiality, and not refilling prescriptions without authorization.  But filling prescriptions was not a “must” under the regulations.  Instead, like the Oklahoma Pharmacy Act, the regulations used permissive language when referring to the filling of prescriptions (e.g., the regulations stated that prescriptions “may” be refilled as authorized, and that, after one year, a new prescription “shall” be required).

Finally, the court looked to analogous decisions from the lower courts in Oklahoma. In Carista v. Valuck, 394 P.3d 253 (Okla. Civ. App. 2016), the Oklahoma Court of Appeals declined to create a duty for pharmacists to question clients regarding illegal drug use since doing so would expand the duties of pharmacists “in a manner unsupported by existing Oklahoma state law or regulations.”  Scholl, 2025 WL 950866 at *6.  This decision supported the court’s holding that the Oklahoma Supreme Court would not interpret the state’s statutory and regulatory schemes to create an affirmative duty for pharmacies to fill prescriptions.

Plaintiffs made a number of arguments in support of a duty, but the court found them unavailing. Plaintiffs argued that pharmacists—like doctors or lawyers—had a duty to provide care in accordance with the standards of other specialists in the field. But there was no contractual relationship between the pharmacy and the plaintiffs, so there was no relationship that would give rise to an affirmative duty. Id. at *7.

Ultimately, the court found that basic logic supported its holding that there was no affirmative duty for a pharmacy to fill prescriptions.  The pharmacy could not initiate the preauthorization process. That had to be done by the prescribing physician. And, once the insurer authorized the prescription, the pharmacy would not be aware of that absent some affirmative contact by the prescriber or the patient.  If the prescriber or patient did not contact the pharmacy to let it know the status of the prescription, the pharmacy would not know whether the prescription was still needed, if it had been filled at a different pharmacy, or if preauthorization was not provided.  Given these realities, it was not logical to create a duty that a pharmacy must fill a prescription.

After this rigorous Erie analysis, the court held that the Oklahoma Supreme Court would not create a duty for the pharmacy to fill the prescription.  The court accordingly entered judgment in favor of the defendants.