Many lawsuits against pharmacies settled in silence

Chanda Givens wanted to ensure the health of her unborn child when she became pregnant last February. Her doctor prescribed a prenatal vitamin, Materna. But instead, a Walgreens wagstore in suburban St. Louis gave her Matulane, a chemotherapy drug that interferes with cell growth.

According to the federal lawsuit she later filed against Walgreens, Givens, then 29, suffered weeks of "nausea, vomiting, neurologic symptoms … dizziness, lightheadedness, chills and shortness of breath." A medical exam showed her fetus was not developing normally. She miscarried in early April.

She said the loss of her baby was a direct result of Walgreens' giving her the wrong drug, and she and her husband, Courtenay, sought actual and punitive damages in excess of $75,000. Her attorneys contended Walgreens failed her on multiple levels in terms of supervising its personnel and verifying the prescription with her doctor.

Was Walgreens really to blame? What caused the error? There is no way to know: The case was settled out of court a few weeks after the lawsuit was filed. Givens, her husband and her attorneys now cannot talk about it publicly because they signed a confidentiality agreement.

USA TODAY found a number of lawsuits that alleged corporate malfeasance in cases of pharmacy errors at Walgreens and CVS. Many were settled, and nearly all the settlements included confidentiality agreements.

"Settlements buy silence," attorney J. Douglas Peters says. "Attorneys have an ethical Catch-22: They have a duty to their client and a duty to the public good. But their first duty is to their client. And if the client is going to get paid, the big-box pharmacies insist on silence."

That's why Peters, who practices in Detroit, is unable to talk specifically about individual cases of pharmacy errors he has settled over the years. But he says he has seen a pattern in which drug chains settled cases after they were asked to produce data revealing what happens behind the drug counter, such as how many prescriptions pharmacists are expected to fill in how much time.

The reasons for confidentiality

Barry Furrow, director of the health law concentration at the Drexel University College of Law, says pharmacies have two major reasons to insist on confidential settlements. First, to avoid bad publicity in a field where public trust is important. Second, to keep potentially damaging information from plaintiff lawyers.

The problem, Furrow says, is such agreements make it difficult to detect patterns of errors at pharmacies, though it's in the public interest to know if they exist. Furrow, a law professor, writes textbooks on health law. "There's a whole world of research that's very hard to do," he says. "It is hard to find out much of anything, even if I talk to lawyers, because they can't tell me much. It's hard to spot patterns and see what's going wrong."

Walgreens challenges the notion that it typically asks for confidentiality in settling such cases. "Rather than a strict policy," the chain said in a written statement, "we consider each case as unique and handle it individually."

CVS, cvswhich also answered in a written statement, said: "Confidentiality agreements are a common practice for all businesses in commercial transactions and in litigation. By including the confidentiality provision, CVS follows standard procedures typical for resolution of any liability claim."

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