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CVS Suggests Doctors Write Prescriptions Without Patients’ Knowledge Class Action

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What would you think of a pharmacy that suggested your doctor to prescribe a medication for you—without even speaking to you about it first? That’s what this complaint claims CVS Pharmacy, Inc. and two associated companies have done in order to increase their sales.

The class for this action is all customers of CVS on whose behalf CVS sent a Request to Close Potential Gap in Therapy letter.

What actually happened? The complaint alleges, “CVS engaged in a scheme to solicit prescriptions from customers’ physicians … which CVS could then sell to customers.”

Plaintiff Charles Tashjian uses a CVS in Medway, Massachusetts for his prescriptions. In June 2018, CVS sent a letter (Letter #1) to his doctor, Dr. Fouad Aoude, saying that the pharmacy had spoken to Tashjian about diabetes care. It said that Tashjian had “requested that CVS Pharmacy reach out to Dr. Aoude … to determine if it is appropriate to start a statin therapy.”

Tashjian does not have diabetes. The complaint says he never spoke to anyone at the pharmacy about diabetes care, nor did he ask anyone there to contact his doctor. Still, the complaint says, the letter “is now part of [Tashjian’s] medical file.”

The complaint alleges, “The statin manufacturer provided marketing assistance to CVS Pharmacy” and “As a result of sending letters, like Letter #1, CVS received financial benefit and profit.”

In November 2018, CVS sent a similar letter to Dr. Aoude (Letter #2). This letter made the same allegedly false statements about Tashjian and suggested Dr. Aoude write a prescription for statin therapy.

The complaint charges that CVS used Tashjian’s name “for financial gain without his permission or consent” and “ax part of their marketing plan.” Also, it says, “CVS is a covered entity for the purposes of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).” The company therefore “owed a fiduciary duty to” Tashjian, the complaint says, and should not have been using his name or information.

The complaint mentions sending a “class-wide consumer protection act demand letter” but says that the company’s response was “unreasonable.”

Among the counts in the complaint are negligence, breach of fiduciary duty of confidentiality, breach of privacy (appropriation of name and/or likeness), and tortious misappropriation of private and personal information. Among the items of relief requested, the complaint asks that CVS be required to disgorge any profit made as a result of the sending of the letters and that it pay damages to Tashjian and other class members.

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