Indianapolis doctor wins defamation judgment against CVS

An Indianapolis physician whose patients were told at multiple CVS Pharmacy stores that their prescriptions couldn’t be filled because the doctor had been arrested or was suspected of running a "pill mill" won a defamation judgment against the drugstore chain.

Dr. Anthony Mimms was granted summary judgment Tuesday on his defamation claim against CVS. A doctor since 2004, he had practiced with Rehabilitation Associates of Indiana until November 2013, when he left to form his own pain-management practice.

Soon afterward, his patients were refused prescriptions in documented incidents at multiple Indianapolis CVS locations as well as at stores in Greenfield, McCordsville and Rushville. Pharmacists and technicians at these stores variously told Mimms’ patients that he had been arrested, that he was under DEA investigation, that his license had been revoked, or other reasons why they were not filling prescriptions he had written.

According to the suit, CVS also employees told patients that Mimm operated a pill mill; was was a murderer; had been or would soon be arrested; and that patients should find another doctor.

Judge Tanya Walton Pratt, in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, granted Mimms’ motion for summary judgment on his defamation claim and denied CVS’ cross-motion for judgment in its favor.

CVS had argued that the employees did not act with actual malice, an element required for a defamation judgment. It also contended the statements were "qualified privilege," because the pharmacists had a legal duty to warn their patients. Pratt did not buy those arguments.

Pratt wrote CVS had failed to present sufficient evidence that the Drug Enforcement Agency and the Indiana Attorney General’s Office were investigating Mimms, rejecting its affirmative defense of truth. CVS also acted with actual malice when an employee stated Mimms’ license had been suspended or revoked, which was untrue and unverifiable.

Mimms also provided evidence that the statements made by CVS employees violated company protocol that expressly stated, “Under no circumstances are you to make any disparaging comments about the customer’s prescriber.” CVS expressly instructed employees not to say a doctor is under investigation, is operating a pill mill, is going to lose a license, is or should go to jail or be arrested.

Left to be decided at trial are whether other statements made by CVS employees are defamatory and the amount of Mimms’ damages.

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