Consumer Law, Warranties Walgreens refills prescription with generic after Dr forgets to add brand, customer pays

[Michael Wechsler]

Jurisdiction

New York

Here is an interesting prescription drug mistake where the consumer ends up paying due to the mistakes of both the doctor and the pharmacy. It happened to me this weekend and we'll see what happens in this saga which I thought was interesting to share. Moral of the legal story: never ever leave your drug store without tearing open every bag of prescription medication you have and ensuring that it is exactly what you thought you were buying and ordered - no matter how small the mistake.

I've been getting a brand name prescription for medication filled at the Walgreens pharmacy for the past several years. The doctor usually fills out the brand name and it gets filled. I have a significant out of pocket cost which can vary. Walgreens telephoned me to remind me I need to refill the prescription so I did. The doctor filled out the prescription with what appears to be the brand name but, for the first time in years, the doctor apparently didn't check the box to dispense the brand name on the refill prescription. The Walgreens pharmacy didn't realize the mistake and filled out the medication for the generic version of the brand name of the drug which is written on the prescription.

At the pharmacy I accepted the stapled, sealed bag, paid by credit card for the medication along with a few other items and left the store. After arriving home and realizing the error that was made, I looked at the bill and noticed medication was somewhat less than I paid last time - about 15%. The cost can fluctuate so i didn't worry and wouldn't have thought generic would be so close to the brand name version.

When I returned to the pharmacy with the medication, Walgreens told me they don't accept returns by law, which apparently states that once the prescription medication goes out the door they cannot accept a return. I didn't look up the law and got right to the point. I told them (1) you've been filling out the same prescription for years and this was a refill that Walgreens initiated and Walgreens had responsibility to fill the same as the last; and (2) the prescription says the brand name on it and filling out a generic version, even though the brand name dispensary box isn't filled, is filling the named product on the prescription. The pharmacy substituted another product with the same active ingredient.

The pharmacy responded that it's considered the same in the industry, brand name and active ingredient. And since I returned the following day (because I was told by the person there that a supervisor was the only person who could deal with this and would only be in the following day), even by law they couldn't accept the return. They suggested I call the doctor to get another prescription with the brand name dispensary box checked and ask them if I could get some discount equal to the amount I'm out of pocket. I practically burst out laughing hearing that suggestion.

I haven't decided what I'm doing yet but will call the doctor tomorrow as I need to get another refill. Thought this drug store adventure would be interesting to share.

 

[adjusterjack]

Interesting coincidence. This afternoon I went to Frys Pharmacy to fill a new prescription for antibiotics (generic allowed). Like you I paid with my credit card ($5.99 self pay), accepted the stapled bag and didn't look at it until I got home. Turned out to be the right medication but you're right, it's something that should be checked at the store before leaving.

Funny thing. Like most people who post problems here, you've omitted the dollar amounts at issue. How much is the generic and how much is the brand name?

And do you have an issue with getting the generics when they are the same medication?

I don't. I get generics all the time.

Walgreens told me they don't accept returns by law, which apparently states that once the prescription medication goes out the door they cannot accept a return. I didn't look up the law

A quick internet search reveals references to such a law in many states but doesn't cite any statute numbers. Stands to reason that the pharmacy has no way of knowing whether the medication has been tampered with. Mine had just a twist off cap, no seal, and the tablets looked rather common. I could have made up cyanide tablets in the same shape and color and returned it to the store.

I've read about people buying stuff in stores, putting poison in them, and putting them back on shelves (or did I see that on a TV shoe?). Anyway, I can understand and support a no return after it leaves the pharmacy policy even if it's not law.

Remains to be seen whether you get somebody to pay for their mistake. Looking forward to an update.

 

[Michael Wechsler]

I purchased a 90 day supply which is supposed to be in a single pack as it is usually less costly. Sometimes they end up providing three vials. Total is about $200. If I wanted generic I can certainly do better than that price. The vials are all sealed bottles which is why I'm even more annoyed. My guess is that this is may be more about "big pharma chain" policy than about law.

Sometimes generic drugs don't work as well and can be for a variety of reasons - the binders for the active ingredients or something to do with large pharmacies purchasing from low grade international sources.

 

[Tax Counsel]

Moral of the legal story: never ever leave your drug store without tearing open every bag of prescription medication you have and ensuring that it is exactly what you thought you were buying and ordered - no matter how small the mistake.

Those who have followed my posts on various forums for awhile are familiar with one of my main mottos: assume nothing, verify everything. Applying that principle has saved my butt over and over again. And not just in my law practice. I also apply that to my personal life, too. Where I can, I verify that everything I'm buying is the right thing before I leave the store. About a quarter of century ago when I was first diagnosed with the chronic condition that I still deal with today (for there is no cure) I was given several prescriptions to fill by my doctor. When I got those prescriptions from the pharmacy, I looked carefully at the labels of each one to make sure they were correct before even paying for them. One of the drugs was filled incorrectly. It was not the timed release version of the drug. Had I taken the drug they gave me, the entire dose would have been released at once, which could have been a disaster. But since I caught it right at the pharmacy counter, the pharmacist took back the wrong drug and filled for me the right one in a matter of a few minutes. That experience reinforced for me the importance of checking my prescriptions every single time. In the years since I've had over one thousand prescriptions filled and only caught one other minor mistake. But it only takes one mistake to potentially cause serious problems as I learned from that early experience. You are the last line of defense, and no one cares more about your well being than you do. So I urge everyone to take a minute and verify your prescription at the pharmacy counter every single time.

 

[cbg]

Timely warning as my husband has meds to pick up today, and he has a similar issue in that he has to have the brand name version of one of them. Walgreens has never made the mistake but a previous pharmacy did.

 

[adjusterjack]

By the same token (less critical than medication) always check your receipt before you leave the checkout area. You'll find mistakes often enough to make it worthwhile and you can get it corrected before you leave where you probably won't drive back to the store if you find a two dollar mistake when you get home.

 

[Michael Wechsler]

I have a terrific apartment in a building literally a 2 minute walk from beautiful homes and gardens, the express subway station and a mini-mall with everything you need. It's sometimes habit not to worry because I can easily remedy any issue without much travel or hassle. This completely took me by surprise. If was something resalable like cannabis one might not worry about it.

Not sure what I'll do. I did call the doctor for a refill (and no, I didn't ask them for $200 of free services!) I can probably get by alternating what I have with the brand name without any issue even though it irks me something fierce due to the heart of the matter that I'm the only person who really didn't make a mistake. They just have leverage. I wondered whether I could challenge it on my AMEX as product not delivered, lol.

 

[army judge]

At the pharmacy I accepted the stapled, sealed bag,

I hate staples on anything but printed material.

That said, I abhor staples on prescriptions.

I rarely go to a brick and mortar location to receive my regular meds.

My wife and I use the mail order arm of our health insurer to obtain regular meds.

Occasionally we have to get a one off med (antibiotic, first time med, etc...), but as suggested above I always open the stapled bag at the counter before walking out of the store.

I have caught a couple of discrepancies that way, so the suggestion to "trust but verify" is useful.

In fact, my wife once found a medication that she was allergic to, and had it filled correctly by working with her physician and the pharmacy the next day.

 

[cbg]

It was a mail order pharmacy that accidentally filled my DH's prescription with a generic and not the brand name. It was at that time a relatively new prescription for him and he didn't think to question it under the circumstances. His doctor, however, went up in a sheet of flame and informed the pharmacy that it was sheer luck that DH hadn't gone into seizures. We have since changed insurances and pharmacies and have had no further problems.

 

[Michael Wechsler]

So the saga continues. I called my doctor to replace the prescription and, here we are almost a week later - no new prescription. I called the pharmacy and they said that "by law" if there is a generic available they can dispense a substitution. I've never ever had them refill a prescription with a brand name on it for generic.

I decided to look at the Walgreens website to see if there was a pharmacy return policy.
Returns Help | Walgreens

A: By law, we cannot accept returns of prescription products for reuse or resale. However, if you feel we have made an error in filling the prescription, please contact the store where you received your prescription.

So there is your standard answer. I searched and found this from the FDA - issued in 1980. Essentially, they are blaming me - the customer - even though I had no reason to believe this policy and I didn't actually make any mistake of my own. So this is a good case for small claims or for AMEX to decide!

CPG Sec. 460.300 Return of Unused Prescription Drugs to Pharmacy Stock

I'm considering writing to the FDA for clarification on what procedures the store must follow if they dispense generic when a brand name is written.

Submit comments on this guidance document electronically via docket ID: FDA-2013-S-0610 - Specific Electronic Submissions Intended For FDA's Dockets Management Staff (i.e., Citizen Petitions, Draft Proposed Guidance Documents, Variances, and other administrative record submissions)

 

[Tax Counsel]

A: By law, we cannot accept returns of prescription products for reuse or resale. However, if you feel we have made an error in filling the prescription, please contact the store where you received your prescription.

Of course they worded it in their favor. But while many might read that to say that by law the pharmacy cannot give a refund, that is not what it says. The key words here are that they cannot take the product back for reuse or resale. That makes sense that the law would prohibit them reselling/reusing a returned drug since it may have been altered after it left the store. But nothing in that statement precludes them from refunding your money because of their mistake.

My understanding of the federal rule is that a pharmacy may dispense the generic in place of the brand name unless the prescription specifically states that the brand name is "medically necessary." Prescription pads typically have a box for the doctor to check for that purpose, though the doctor could write that instruction out by hand. If the doctor just used the brand name but did not indicate that the brand name was medically necessary then the pharmacy is probably in the right here and your doctor is the one who screwed up.

 

[Michael Wechsler]

Agreed on the right to give me a refund. However the store is not admitting they made a mistake. Even though the store solicited me to contact my doctor for refills (and I obliged), they aren't taking responsibility for inquiring with my doctor and ensuring that the prescription for a refill (of the same medication) was identical. They are claiming that a refill can be the generic unless stated otherwise. As I made manifestly clear to them, the refill was not a refill but a replacement.

From my perspective they both erred but I can't get them into a room to figure out how to compensate me as neither wishes to do so nor will they due to leverage. Either way it's an awkward situation since I really don't care to deal with either again since no one will take responsibility and the law apparently will not allow for packages that clearly have not been tampered. Will need to figure it out shortly.

 

[army judge]

From my perspective they both erred but I can't get them into a room to figure out how to compensate me as neither wishes to do so nor will they due to leverage. Either way it's an awkward situation since I really don't care to deal with either again since no one will take responsibility and the law apparently will not allow for packages that clearly have not been tampered. Will need to figure it out shortly.

If you've the spirit for it, Michael, this is one you could take to small claims court.

On a personal note, I was always annoyed by Walgreens policy asking for my address and DOB.
It annoyed me so that I made out cards with the information printed on it, and in a perfect imitation of the TSA airport thugs, I was told that I had to say it.

That irked me to no end, and I asked, "What if I was mute?" Of course the answer was, but you're not.

To which I replied, "But I'm shy and scared to speak in public."

The clerk started giggling.

I walked away and sought to discover what i think is called the "area pharmacy manager".
I discovered he was located in Austin and arranged to meet with him when he was next up my way.

A week later, we are meeting face to face.
He had asked the pharmacy personnel about my concern, and I explained it my way.
I said that we all have serious concerns about identity theft, and that one never knows who or what is within earshot.
I expressed my discomfort with someone bent on a criminal act that might follow me home, use my spoken information to do me harm, etc...

I explained that providing the information requested (Name, DOB, address, telephone number) in written form satisfied the clerk's need to verify my identity, spoken or written.

He agreed and soon the policy was changed.
Now and then I'd get push back, but eventually things worked well.

A discussion with the "area pharmacy manger" in your neck of the woods might work for you, too.

Honestly I do enjoy the mail order process, and not having to visit a brick and mortar location, unless it is for a one off antibiotic, or other one time, once medication.