Doctor Wins Restraining Order Against CVS After Prescription Ban

Alicia Gallegos

August 17, 2021

A Kentucky pain specialist has won a temporary restraining order against CVS Pharmacy after the retail chain forbade its pharmacies to fill his prescriptions.

Dr Kendall Hansen Alamy

In an August 11 decision, District Court Judge William Bertelsman ordered CVS to stop refusing prescriptions written by Kendall E. Hansen, MD. Judge Bertelsman ruled that Hansen is likely to succeed in his claim that CVS barred his prescriptions without evidence that he violated any law or professional protocol. The restraining order will remain in place while Hansen's lawsuit against CVS Pharmacy proceeds.

Ronald W. Chapman II, an attorney representing Hansen, said the order is groundbreaking and that to his knowledge, it's the first time a federal court has overturned a pharmacy's decision to block a prescriber.

"We believe that CVS' decision was based solely on algorithms they use to analyze prescriber practices and not an any individual review of patient records," Chapman said. "In fact, we invited CVS to come out to Dr Hansen's practice and look at how he was treating patients and ensure things were compliant, but they refused. Instead, they had a phone call with him then cut his patients off."

Michael DeAngelis, a spokesman for CVS, said the court's order illustrates the proverbial rock and hard place that pharmacies are placed between in the country's fight against the misuse of prescription opioids.

"It is alleged in many lawsuits that pharmacies fill too many opioid prescriptions and should operate programs that use data to block prescriptions written by some doctors," DeAngelis wrote in an email to Medscape Medscape News. "And yet other lawsuits, including this one, argue that we should not operate programs that may block prescriptions. Such contradictions are grossly unfair to the pharmacy profession."

DeAngelis declined to comment about Hansen's claims or specify what led CVS to refuse his prescriptions.

Hansen declined to comment for this story through his attorney.

Hansen is no stranger to the spotlight. The Northern Kentucky pain doctor made headlines in 2012 when two of his horses, Fast and Accurate, and Hansen, ran in the Kentucky Derby. In February 2019, he drew media attention when his practice, Interventional Pain Specialists PLC, in Crestview Hills, Kentucky, was raided by federal agents. Hansen owns and operates the facility, which serves patients in Kentucky, Ohio, and Indiana.

The search yielded no findings, and no charges were filed, according to Chapman. Scott Hardcorn, director of the Northern Kentucky Drug Strike Force, confirmed that his agency assisted in the operation but said he was unaware of the outcome and that his officers generated no reports from the investigation. A spokesperson for the Drug Enforcement Administration (DEA) would not comment about the investigation and directed a Medscape reporter to the DEA website where enforcement actions are listed. No records or actions against Hansen can be found.

The CVS complaint stems from actions taken by the pharmacy against Hansen earlier this year. In June, a pharmacy representative allegedly contacted Hansen by phone and asked him questions about his practice and his prescribing practices, according to his lawsuit filed in US District Court for the Eastern District of Kentucky. During the call, the representative did not inform Hansen that any of his prescriptions were in question or were suspected of being medically unnecessary, the complaint alleges.

On July 28, 2021, CVS sent Hansen a letter announcing that its pharmacies would no longer be honoring his prescriptions. The letter, entered as an exhibit in the lawsuit, states that CVS contacted Hansen twice in 2021 about his prescribing practices ― once in May and again in June.

"Despite our attempts to resolve the concerns with your controlled substance prescribing patterns, these concerns persist," Kahra Lutkiewicz, director of CVS' retail pharmacy professional practice, wrote in the letter. "Thus, we are writing to inform you that effective August 5, 2021, CVS/pharmacy stores will no longer be able to fill prescriptions that you write for controlled substances. We take our compliance obligations very seriously, and after careful consideration, find it necessary to take this action."

The letter does not explain the details behind CVS' concerns.

Hansen sued CVS on August 4 for tortious interference with a business relationship and defamation, among other claims. His complaint alleges that Hansen and his patients will suffer irreparable injury if the prescription decision stands. More than 250 of Hansen's patients use CVS pharmacies for their prescriptions, and some are locked into using the pharmacy because of insurance contracts, Chapman said.

"There really is nowhere else for these patients to go," Chapman said. "They would have to go to a new doctor and establish a new relationship, and obviously that has devastating consequences when we're talking about people who need their medication."

CVS has not yet issued a written response to the lawsuit. In his order, Judge Bertelsman stated that a preliminary conference was held in which all parties were represented and stated their positions to the judge.

"Plaintiffs are likely to succeed on the merits of their claims that defendant has interfered with plaintiffs' relationships with their patients by refusing to fill prescriptions written by plaintiffs, and defendant has done so without evidence that plaintiffs have violated any law or professional protocol related to such prescriptions," Bertelsman wrote. "The balance of the hardships between the parties weighs in favor of issuing a temporary restraining order inasmuch as defendant's actions pose a threat to plaintiffs' professional reputation and livelihood and...because plaintiffs' patients' medical care is implicated by defendant's actions, the public interest weighs in favor of issuance of the temporary restraining order."

Hansen is currently embroiled in several other legal battles as both a plaintiff and a defendant.

In 2019, a patient sued him for negligence and fraud for allegedly performing medically unnecessary and excessive injection therapy. The suit claims the patient was required to undergo injection therapy on a continuing basis in order to receive her narcotic pain medication, according to the lawsuit filed in Kenton Circuit Court. The complaint alleges that Hansen made false representations to the patient and to her insurers that the injections were necessary for the treatment of the patient's chronic pain.

The federal government is not involved in the case.

The negligence lawsuit is in the discovery stage, and attorneys plan to collect Hansen's deposition soon, said Eric Deters, a spokesman for Deters Law, a law firm based in Independence, Kentucky, that is representing the patient.

"The crux is that he performs unnecessary pain procedures and forces you to get an unnecessary procedure before giving you your medication," Deters said.

However, Hansen's and Deters' history together includes a recent riff, according to an August 2021 lawsuit filed by Hansen against the law firm. Hansen was a former medical expert in cases for Deters and Associates PSC, but the relationship turned sour when attorneys believed Hansen was retained as an expert in a case against their clients, according to Hansen's suit. Hansen claims that as retribution, Deters and Associates issued a medical malpractice lawsuit against him in 2020, even though attorneys allegedly knew the statute of limitations had run out. A trial court dismissed the 2020 lawsuit against Hansen as being untimely filed. Hansen's lawsuit alleges wrongful use of civil proceedings and requests compensatory, punitive damages and court costs from the law firm.

The law firm has faced trouble in the past. In August 2021, the Ohio Supreme Court ordered that Eric Deters pay a $6500 fine for engaging in the unauthorized practice of law. Deters' Kentucky law license has been suspended since 2013 for ethics infractions, according to court records. He retired from law in 2014 and now acts as a spokesperson and office manager for the law firm. The fine resulted from legal advice given by Deters to two clients at the law firm, according to the Ohio Supreme Court decision.

As for the CVS lawsuit, an upcoming hearing will determine whether the federal court issues a permanent injunction against CVS's actions. CVS officials have not said whether they will fight the temporary restraining order or the withdrawal of their prescription ban against Hansen.

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