Fouse v. Shin, 2007 WL 2353364 (Cal. Ct. App. Aug. 20, 2007)

Court and Agency Decisions and Orders (including case law)

The following synopsis is condensed from New York Law School Professor Art Leonard's excellent discussion on Leonard Link at http://newyorklawschool.typepad.com/leonardlink/.

A unanimous panel of the California 2nd District Court of Appeal has revived a lawsuit against a pharmacist who is charged with discriminating against a person with AIDS in a dispute over filling a prescription. The plaintiff had just been discharged from the hospital, with instructions to get certain prescriptions filled immediately. He and his wife went to a Walgreen pharmacy, and he gave the prescriptions to the pharmacist. One was for an AIDS medication. Plaintiff alleges that “without giving any reason or justification,” the pharmacist “refused to fill the prescription,” and when plaintiff insisted it had to be filled right away, the pharmacist again refused and asked in a loud and hostile tone (and in the presence of other customers) whether plaintiff had AIDS or cancer, a question plaintiff declined to answer because he felt “embarrassed and shocked” by having this question loudly asked in the presence of other customers. Eventually, convinced it was the only way he would get service, plaintiff responded that he had AIDS “and needed the antibiotics to live.” Plaintiff claims that the pharmacist made no similar inquiries of other customers before filling their prescriptions. Plaintiff is an African-American man. The pharmacist claims that the prescription in question was for a medication whose coverage under the Medi-Cal insurance program is restricted to those with a diagnosis of cancer or AIDS, and that he was asking the questions to be sure that plaintiff, who was using Medi-Cal for payment, was eligible for the medication. This requires documentation, not just the patient’s say-so, in the form of information in writing from the prescribing doctor confirming the diagnosis; a simple prescription form won’t do. According to the pharmacist, the plaintiff returned later that evening when other customers were not around, and the pharmacist explained the documentation requirements under Medi-Cal. Pharmacist denies raising his voice either time. Ultimately plaintiff “cancelled” his order and took his prescription elsewhere, subsequently filing suit. Plaintiff's complaint alleged violation of civil rights under the Unruh Act (California's public accommodations law), alleging race, disability and (perceived) sexual orientation discrimination. He also alleged infliction of emotional distress, violation of medical confidentiality law, fraud and negligence. The trial judge, Melvin Sandvig of LA County Superior Court, had dismissed all claims on motion by the defendant. On appeal, the court disagreed, finding that plaintiff's factual allegations were sufficient to bring the Unruh Act into play. The court pointed out that the relatively simple pleading requirements were met by stating that plaintiff was an African-American man living with AIDS, had been denied services at a time when they were provided to others, and was entitled to the service. However, the appellate court agreed with the trial court that the factual allegations did not state a violation of the medical confidentiality law, or support tort claims of negligence or fraud.