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Pharmacist files whistleblower lawsuit

By Jennifer Osborn, news reporter, The Ellsworth American | Jan 09, 2020

Bucksport — A pharmacist is suing his former employer, Walgreens Boots Alliance Inc., alleging whistleblower retaliation, age discrimination and defamation after the company allegedly fired him when he wouldn’t fill a prescription for fentanyl patches for a customer who had been arrested on a drug trafficking charge.

A civil complaint was filed Dec. 16 on behalf of the former pharmacist, Jon Simms of Hampden, who had been working at the Bucksport Walgreens.

The complaint states that Simms refused to fill a prescription for fentanyl patches for a Verona Island man after seeing a 2018 news article that reported the man and his wife had been charged with drug trafficking.

Maine Drug Enforcement agents seized $11,000 worth of cocaine and heroin from the residence. Two Massachusetts residents also were arrested.

“Walgreens fired Simms in retaliation for blowing the whistle on Walgreens’ policy and practice of filling unsafe and illegal opioid prescriptions and deviating from the applicable standard of patient care,” stated Portland attorney Chad T. Hansen of the Maine Employee Rights Group.

Hansen represents Simms in the suit.

The American was unable to reach a Walgreens representative for comment before press time.

Simms had already had concerns about the prescription for several months before seeing the Feb. 14, 2018, Ellsworth American article about the customer’s arrest, according to a copy of the civil complaint. Simms had discussed his worries with his supervisor, another pharmacist, who did not share his concerns.

The attorney cited Maine law in the complaint, which states “a pharmacist may exercise discretion and refuse to fill any prescription if unsatisfied as to the legitimacy or appropriateness of any prescription presented or the intention of the customer to use the drug according to the instructions for use.”

Prior to seeing the news article, Simms had concerns about the strength of the patient’s prescription for fentanyl patches and how leftover portions of the patches were being disposed of, Hansen said.

Because of the strength of the patches prescribed, the patient would have two-thirds of each patch “left over,” according to the complaint.

Fentanyl poses a significant health threat and public safety concerns for anyone who comes into contact with it.

In March 2015, the U.S. Drug Enforcement Administration issued a safety alert about the synthetic opioid.

“Fentanyl is extremely dangerous to law enforcement and anyone else who may come into contact with it,” the DEA stated. “Fentanyl is potentially lethal, even at very low levels. Ingestion of small doses as small as 0.25 mg can be fatal. Often laced in heroin, fentanyl and fentanyl analogues produced in illicit clandestine labs are up to 100 times more powerful than morphine and 30-50 times more powerful than heroin.”

A new Maine law took effect on July 1, 2017, reducing the limit for all opiates prescribed to a patient to 100 Morphine Milligram Equivalent (MME).

In Simm’s case, the patient in question was being prescribed patches for daily use containing 360 MME per day, Hansen stated in the complaint. That resulted in excess fentanyl of 240 MME accumulating each day.

Maine law provides exceptions for exceeding the dosage of opiates when a person has cancer pain or is undergoing palliative care, Hansen said.

However, the prescriber must provide an appropriate “exception code.” In the case of the patient, the physician cited “palliative care.”

Simms’ other concern was that the fentanyl was being prescribed by a primary care physician.

“This was a red flag for Simms because fentanyl patches for chronic pain are normally prescribed by a pain specialist,” Hansen stated.

The patient’s wife allegedly told the pharmacist when he questioned her that “we just throw them out with the trash. It’s fine.”

The patient’s health insurance would only pay for one patch every three days, so his doctor contacted the Johnson & Johnson Patient Assistance Foundation, which agreed to pay for the patches, the complaint stated.

The last time Simms issued patches to the patient’s wife before Feb. 14, 2018 — the date of the drug bust — Simms asked the woman if she and her husband would consider disposing of them at the Bucksport police station.

“Simms watched her reaction closely,” said Hansen. “She recoiled for an instant, then recovered.” The woman said “I suppose that could be an option.”

Then the article about the drug bust came out.

“Simms thought of all the times that he had dispensed fentanyl directly into this alleged dealer network,” Hansen said. “Simms felt nausea and guilt that he had not acted sooner on his suspicions and that he had not called the doctor to propose witnessed disposal of the leftover patches.”

Hansen said Simms’ supervisor at the pharmacy told Simms that what happened to the fentanyl waste was not their concern as pharmacists and that their role was limited to counseling the patient on the safe disposal of partially used patches.

As a pharmacist working for Walgreens, Simms was required to complete “Walgreens’ Good Faith Dispensing Checklist,” before electronically filling any Schedule II drug, such as fentanyl.

Question 1 is “Are there warning signs present with this patient or this prescription?” Hansen said. “Simms could no longer answer ‘no’ to Question 1, which meant he could no longer fill this prescription.”

Simms alerted the patient’s physician that the pharmacy was no longer going to be able to fill the prescription in light of the drug arrest. He also notified the Johnson & Johnson Foundation.

The pharmacy supervisor notified him several days later that he was going to report Simms’ actions with the physician and the foundation to Walgreens.

On April 4, 2018, a Walgreens representative called Simms and advised that he had been fired.

Hansen said the company’s initial position about firing Simms was that he had violated the company’s privacy policy by accessing the patient’s profile in order to determine the next date of distribution for the patches. Simms checked that date after seeing the report about the patient’s arrest.

“Subsequently, Walgreens has changed its explanation for Simms’ termination to allege that he was terminated, in part, for contacting the patient’s physician and Johnson & Johnson,” the attorney stated.

At the time Simms was terminated, he was 59 years old. He was replaced with a “substantially younger employee pharmacist,” Hansen said. “After Walgreens took control of the Rite Aid stores in Maine, it has systematically removed older employees and replaced them with younger employees.”

The company viewed Simms as an older employee who had more experience, confidence and willingness to speak out against Walgreens’ practices, the attorney said.

Simms has been unable to find a full-time position as a pharmacist because of Walgreens’ actions, Hansen said.

Simms is seeking a jury trial as well as back pay, benefits, compensatory damages and attorneys’ fees and legal expenses. No date for trial has been set yet.

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