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18 Mich. St. U. J. Med. & L. 1Michigan State University Journal of Medicine & LawSpring, 2014GAUGING THE HEARTBEAT OF E-PRESCRIPTIONS? - A RETROSPECTIVE ANALYSISSamuel?D.?Hodge, Jr.1?Allison Kilcourse2Copyright ? 2014 Michigan State University Journal of Medicine & Law;?Samuel?D.?Hodge, Jr. and Allison KilcourseThe desire to take medicine is perhaps the greatest feature which distinguishes man from animals.---Sir William Osler(1849 -1919)I.Statistical Overview3II.Medication Errors4III.Pharmacist Liability5IV.Physician Liability6V.The E-Prescription Process7VI.E-Prescriptions and the Government9VII.Electronic Prescriptions and the Private Sector11VIII.The Disadvantages of E-Prescriptions12A.State Responses to Electronic Prescriptions161.General E-Prescription Laws162.Controlled Substances20IX.Cases Involving E-Prescriptions22A.Administrative Rulings22B.Criminal Cases23C.Malpractice25X.Conclusion26Medicine has undergone a major transformation in the way routine business is transacted. This metamorphous is primarily the result of converting paper charts into electronic medical records.3?The government has invested?*2?heavily in this digital conversion by providing financial incentives and imposing penalties to encourage its implementation.4?This incentive program included the conversion to digital prescriptions.5?“[A] record 788 million prescriptions were routed electronically in 2012,” and this number will only increase with time.6E-prescription7?is a computer generated system that allows physicians to electronically transmit medication orders “directly to a pharmacy from the point-of-care.”8?The inclusion of electronic prescribing9?in the Medicare Modernization Act of 2003 provided the impetus for this change, and the Institute of Medicine's report in 2006 on the role of e-prescribing in reducing medication mistakes received much publicity, helping to promote awareness of e-prescribing's role in improving patient safety.10*3?Compared to paper or fax prescriptions, e-prescribing improves medication safety, improve[s] prescribing accuracy and efficiency, increase[s] practice effectiveness while improving health care quality and reducing health care costs.11This article will explore the issues involving e-prescriptions and will examine whether the touted benefits of the system have come to fruition.I. Statistical OverviewThere has been a significant increase in the issuance of medication recently because of the development of new drugs and the need to care for the elderly.12?One merely has to look at the growth of pharmacies in local neighborhoods to appreciate this fact. Whether these businesses are stand-alone stores or branches in supermarkets, pharmacies are dominate fixtures in the landscape. This development is not surprising because the vast majority of individuals take at least one pill on a daily basis, and more than one quarter of the population ingests five pills or more.13?Those over 65 are the biggest consumers of drugs, and the use of multiple medications has risen during the past decade.14?“In any given week 56% of children are taking at least one medication and 27% take two or more; 21% use at least one prescription drug.”15?Therefore, it is not surprising that there are a number of problems associated with the issuance and consumption of drugs.According to the Department of Heath and Human Services, a study commissioned by the National Association of Chain Drug Stores concluded that employees of drug stores place over 150 million calls to physicians each year to discuss perceived medication mistakes or to obtain an explanation of prescription orders.16Handwriting medication orders can be unproductive because of the frequent need to contact heath care providers over poor penmanship, and having to re-enter the information required to satisfy federal and state reporting requirements.?*4?17?An ancillary problem is that the sick are inconvenienced by wasting time while their prescriptions are filled.18II. Medication ErrorsMedication is an amazing supplement for improving health. It can be utilized to “cure infectious diseases, prevent problems from chronic diseases, and ease pain. But medicines can also cause harmful reactions if not used properly. Errors can happen in the hospital, at the doctor's office, at the pharmacy, or at home.”19A medication error is defined as follows:Any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the health care professional, patient, or consumer. Such events may be related to professional practice, health care products, procedures, and systems, including prescribing order communication, product labeling, packaging, and nomenclature; compounding; dispensing; distribution; administration; education; monitoring; and use.20It is not surprising, therefore, that medication errors injure “at least 1.5 million people every year.”21?In fact, it is estimated that “at least one medication error per hospital patient, per day occurs,” and “400,000 preventable drug-related injuries happen each year.”22Further, “800,000 medication errors also occur in long-term care settings and about 530,000 occur among Medicare patients.”23The National Academy of Sciences has enumerated several ways to decrease mistakes. The first recommendation calls for improving patient-provider partnerships while encouraging consumers to become active partners in their own care.24?New and improved drug information resources are called for as well, with improved web sites to “serve as a centralized source of comprehensive, objective, and easy-to-understand information about drugs for consumers” and improved “drug naming, labeling, and packaging.”25The most prominent of these recommendations, however, is the implementation of e-prescriptions. “Studies indicate that paper-based prescribing is?*5?associated with high rates of error.”26?“Electronic prescribing is safer because it eliminates problems with handwriting legibility and, when combined with decision-support tools, automatically alerts prescribers to possible drug interactions, allergies, and other potential problems.”27III. Pharmacist LiabilityPharmacists are not immune from lawsuits over medication errors even though a health care provider issues the prescription. “Generally, a pharmacist does not generally have a duty to question a judgment made by a physician as to the propriety of a prescription,” but “a pharmacist does have a duty to be alert for clear errors28?and mistakes with a prescription.”29?Clear errors include, “obvious lethal doses; inadequacies in the instructions; known contraindications; or incompatible prescriptions.”30?The extent to which particular jurisdictions hold a pharmacist liable varies.31?For instance, “[s]ome courts have recognized the duty of a pharmacy to read prescriptions and be aware of patent inadequacies in the instructions as to the maximum safe dosage of known toxic drugs and medicines”; however, other courts have noted that “a pharmacist has no common law or statutory duty to refuse a prescription simply because it is for a quantity beyond that normally prescribed or to warn the patient's physician of that fact.”32?Additionally, “[t]he Omnibus Budget Reconciliation Act (OBRA) of 1990 expanded the pharmacist's role in reducing the risks of prescribed drugs by requiring that they counsel Medicaid recipients.”33*6?If a claim is brought against a pharmacist, three approaches can be used by the plaintiff:first, they can request the claim to assert that a reasonable pharmacist concerned about the safety and efficacy of the prescribed drug has a duty to communicate with the prescribing doctor Second, if the state has passed a statute or regulation specifically imposing a duty on pharmacists to warn or counsel, plaintiffs can invoke that law as defining a new standard of care for pharmacists Third, plaintiffs can argue that these earlier decisions present[[[] a standard-of-care question for the jury, one that turns on the facts of particular cases.34Regardless of specific case law, it is widely accepted that a pharmacist has a duty to accurately fill a prescription.35?While this requirement has been upheld in a number of cases,36?other courts have held that “the pharmacist has no duty to caution the patient of the possible undesirable effects of the drug, absent special circumstances or neglect.”37IV. Physician LiabilityMedication errors by physicians can occur in a variety of ways, ranging from the writing of the initial prescription to the administration of the drug. Obviously, a person may be injured if the physician prescribes the wrong medication or the doctor misdiagnosis the medical issue and prescribes the wrong medicine.The list of possible mistakes and errors seems endless; however, the most common error involves the dosage - the patient is provided with either too little or too much of a drug.38?Prescriptions mistakes can be fatal and are?*7?traditionally caused by a doctor's inadequate understanding of a drug's use, prescriptions that are hard to read, or medication errors attributable to drugs that have similar sounding names.39V. The E-Prescription ProcessThe high incidence of an adverse drug event is not surprising considering the complexity of medical care.40?Because of the claimed ability to reduce medication orders that are hard to read, e-prescriptions are advocated as a method to eliminate this problem. After all, this new electronic system is able to provide the doctor with an automated warning system at the time the prescription is issued while the doctor is able to view the medical records of the patient.41?The pharmacy is aided by the smaller number of medication errors that require clarification and the elimination of paper prescriptions. These benefits allow the druggist to spend more time with the customer.42The e-prescription system relies upon computers and their data entry abilities.43?A basic system will include the necessary e-prescribing software and internet connection between the heath care provider and pharmacy.44?The American College of Rheumatology notes that the system has the advantage of allowing a doctor to electronically review the patient's health insurance coverage and medication history and sending the prescription over the internet directly to the patient's pharmacy.45?It also allows the pharmacy to electronically notify the physician when the medication has to be renewed.46The digital transmission process starts when the patient and doctor discuss the current problems and treatment options. As the electronic prescription?*8?is typed, the e-prescribing system links electronically to a hub to ascertain whether the person is eligible for payment of the medication.47?The patient's up-to-date medication history is then displayed to the doctor at the point-of-care.48?This is reviewed along with clinical alerts, prescription history, eligibility, and prior authorization information, followed by the physician choosing the therapy and verifying the patient's pharmacy of choice.49?Once the prescription is completed, the e-script is sent to the pharmacy. The druggist then fills the prescription and sends a fill acknowledgment to the physician.50Converting to an electronic prescription system, however, is not without its financial costs.51?The first step requires a choice between a stand-alone or e-prescribing within an electronic medical records system or EMR.52?A stand-alone system is cheaper and easier to install. However, it may not have the full performance abilities of an electronic medical records system.53?Additional factors that go into the selection process include the cost of a wireless network, the price of the hardware, licensing fees for the software and the conversion cost of transferring the existing records to the electronic system. Other considerations include networking costs, such as Internet connectivity, wireless network, practice management system integration into the new system; hardware costs such as desktops, laptops, servers, and printers; software licensing costs and future upgrades; yearly fees, such as subscription or licensing costs; training and support; transferring records from the existing system to the new one; and creating communication procedures between the current office equipment and the e-prescribing system.54A survey conducted by the Texas Medical Association determined that the median cost for implementing an EMR system was about $25,000 per doctor.55?The following table depicts the usual costs for lower, mid-range, and?*9?higher cost EMRs systems for an average size practice in Texas, which consists of 3.5 full time employed physicians.56Sample Costs (Based on an Average, 3.5-physician practice)ItemProduct AProduct BProduct CSoftware Licenses$ 31,980$ 61,020$ 71,000Data Conversion$ 2,995$ 2,900$ 5,000Other Licenses-$ 6,691$ 8,000Training$ 6,205$ 26,449$ 50,635Installation$ 4,480$ 12,345$ 4,940Discounts-($ 23,215)($ 19,402)Annual Recurring Costs$ 12,871$ 26,834$ 21,537Hardware/Network$ 30,000$ 30,000$ 30,000Project Total$ 88,531$ 143,024$ 171,710These costs seem expensive but the government provided substantial incentives to hospitals and physicians under Medicare and Medicaid for those who complied with the mandates of “meaningful use” by 2011.57?The financial inducements offered by the government under Medicare can reach $44,000 and $63,750 under Medicaid.58VI. E-Prescriptions and the GovernmentThe federal government has actively encouraged and heavily invested in the adoption of e-prescriptions.59?The Electronic Prescribing (eRx) Incentive Program utilizes a mixture of incentive payments and compensation adjustments to boost electronic prescribing by eligible health care providers.60?Health care providers of Medicare patients who use an e-prescribing system for patients covered by the “Physician Fee Schedule” will receive a financial incentive?*10?by the government.61?Conversely, physicians who do not utilize this new electronic prescription system for Medicare Part B services will be fined starting in 2012.62?Those who have not become electronic prescribers63?will be subject to a 2.0% payment adjustment on their Medicare Part B fees for services provided in 2014.64?As the Secretary of Health and Human Services Secretary noted, the e-prescribing incentives and penalties set forth in the Medicare law will “have a profound effect on the adoption and use of e-prescribing.”65The following table represents the carrot and stick approach offered by the federal government:66INCENTIVE/PENALTY SCHEDULEYEARINCENTIVEPENALTY20092%0%20102%0%20111%0%20121%-1%20130.5%-1.5%20140%-2%Beyond0%-2%Any health care professional who orders medications is bound by the requirements of the eRx program.67?Generally, those who do not actively participate in a Medicare program are exempt.68*11?Federal law judiciously monitors the issuance of controlled substances and traditionally required that a prescription for a controlled substance be in writing, and that prerequisite may only be satisfied through the issuance of a paper prescription. Because of the advancements in technology and security proficiencies for electronic uses, the Drug Enforcement Administration recently amended its regulations to afford doctors with the option of using electronic prescriptions for controlled substances instead of paper prescriptions.69Some states now allow controlled substances to be prescribed electronically while others exclude Schedule II controlled drugs because of their high risk for abuse.70VII. Electronic Prescriptions and the Private Sector“The private sector has spurred the growth of e-prescribing as well. Several private initiatives, by insurers and other payors, have increased the frequency of e-prescribing. Most notably, the National ePrescribing Patient Safety Initiative (“NEPSI”) coalition is dedicated to the increased use of e-prescribing software.”71?“NEPSI has offered free software to physicians that encounter financial barriers in their practices.”72?Some private health insurance carriers have also actively encouraged the implementation of digital prescriptions. For example, “Horizon Blue Cross Blue Shield of New Jersey serves as the conduit for organizations in New Jersey interested in adopting NEPSI's free eRx solution, eRx NOW from Allscripts.”73?This software enables Rx powered technology to help physicians write electronic prescriptions.74?“Network physicians who have implemented an approved electronic prescribing (e-prescribing) tool may also be eligible for discounts on their medical malpractice insurance premiums.”75?Blue Cross and Blue Shield of Illinois is an advocate of this new system because it believes that e-prescriptions will increase patient safety by affording heath care providers the ability to transmit medication orders directly?*12?from their offices to the pharmacy.76?Humana Insurance Company notifies its subscribers that doctors benefit from electronic prescriptions because it gives them access to medication, health, and personal information to ensure that physicians are able to prescribe the correct medicines.77?This electronic system allows the doctor to “pull up [patient] prescription benefit information, access specific drug information, and electronically track any problems [the patient] may have with certain medicines.”78VIII. The Disadvantages of E-PrescriptionsThe use of E-prescriptions by physicians continues to grow. It has been reported that in 2012, 47% of visits to physicians generated an electronically delivered medication history and 44% of drug orders were sent electronically.79?Small practices were the leaders in the adoption of e-prescribing, with 65% of practices with six to ten doctors being e-subscribers.80?E-Prescriptions, however, are not without their problems and some of the claimed benefits for adoption have not come to fruition.Some of the major barriers to EMR use that have consistently emerged are high startup costs, slow and uncertain financial payoffs, and large initial physician expenditures of time.81?The Center for Health Systems Change also notes that physicians have emphasized “two barriers to use: 1) tools to view and import the data into patient records [are] cumbersome to use in some systems; and 2) the data [is] not always perceived as useful enough to warrant the additional time to access and review them, particularly during time-pressed patient visits.”82While these are understandable issues and most likely represent short term problems, prescription errors persist with the digital systems. Surprisingly, e-prescriptions are not error free with a mistake rate that is comparable to the traditional handwritten order.83?For instance, an error rate of more than sixty?*13?percent was found in electronic medication orders for failing to provide such things as drug usage or dose.84?Error rates also varied by computerized prescribing system, from 5.1% to 37.5%;85?one-third of those mistakes had the potential for harm.86?“A breakdown of the errors by category showed that the four most common classes of drugs containing medication errors were anti-infectives (40.3%), nervous-system drugs (13.9%), and respiratory-system drugs (8.6%). The most common drug classes associated with potential [adverse drug events] were nervous-system drugs (27.0%), cardiovascular drugs (13.5%), and anti-infectives (12.3%).”87?One expert explained that many of the errors or miscommunications that happen with digitally sent prescriptions occur because physicians are not providing all of the necessary information concerning the medication that needs to be issued such as the complete product name, strength and dosage.88?The e-prescription may also be transmitted to the pharmacy with the correct drug name, but not the correct strength and/or dosage.89?Common abbreviations used on handwritten prescriptions may also “get lost in translation” if they are entered into the e-prescription platform.90?There have even been cases where physicians have added notes concerning a patient's use of the medication, but this practice has resulted in additional confusion on occasion because there may be a discrepancy between the pharmacy records and the instructions by the physician.91The error rates and their severity also varied by computerized prescribing system, implying that some systems may be better suited for preventing mistakes than others.92?Therefore, merely implementing a computer system for dispensing medication is not the answer.93Instead, the prescribing system must have comprehensive functionality and processes in place to guarantee meaningful system use in order to decrease medication errors.94?A different study supported these findings and noted that “[b]asic computerized prescribing systems may not be adequate to reduce errors. More advanced systems with?*14?dose and frequency checking are likely needed to prevent potentially harmful errors.”95Another analysis of users of electronic transmission of new prescriptions reported that about one-third of patients arrived to pick up their medication before the pharmacy had received the orders.96?Some doctors blame this development on the failure of pharmacy workers to be adequately trained to appreciate new e-prescriptions.97?This problem, however, should disappear once workers gain more familiarity with this new system.98?Pharmacist counter by blaming the doctor for the failure to promptly send the prescription or by transmitting the medication orders to the wrong drug store.99All parties noted that the electronic renewal process was not as successful on a consistent basis.100?New prescription routing and renewals proved to be more challenging to assimilate into organization workflows.101?Physicians who received e-renewal requests identified several ways in which this process broke down causing inefficiencies.102?They complained that pharmacy did not also request electronic renewals of medication orders or make duplicative requests for a particular medication by different means even though the physician had responded to the initial request electronically.103?Nevertheless, those who answered the survey emphasized the time-saving benefits of the electronic renewal procedure when working correctly.104A number of physicians also use e-prescriptions just enough to avoid the financial penalties imposed by the federal government, but “‘they don't make e-prescribing part of their routine”’ practices.105?Part of this resistance is because their staffs are not doing their part in the process.106?For example, “[t]he nurses or medical assistants may not have entered the medication lists for patients who haven't [been] seen since the doctor started e-prescribing. In some cases, they haven't asked patients about their preferred pharmacies and put those in the system.”107*15?Even with the benefits of e-prescriptions some physician are simply reticent to convert to this digital system.108?Reasons vary and include not wanting to use a computer, not wanting to incur the cost of the program, and being afraid that their employees won't use the system.109?Some physicians have experienced problems with the drop down menu screens where the doctor is requested to enter the correct dosage.110?Some systems don't confirm the dosage, and in other cases, the doctor incorrectly selects the value above or below the proper dosage. Another criticism is “alert fatigue” where so many cautions appear that physicians start to ignore them.111?In fact, it was found that few physicians alter their prescriptions in response to a drug allergy or interaction notice, and there are a few systems that the threshold for alerting was fixed too low.112?The recommendation was that “[c]omputerized physician order entry systems should suppress alerts for renewals of medication combinations that patients currently tolerate” without harm.113The Health Insurance and Accountability and Portability Act of 1996 (HIPAA) also plays a role in the adoption of digital system with the enactment of regulations on security and privacy.114?Several mandates must be followed, including: “secure point-to-point electronic transmission of the prescription at each [connection] in the chain, entity authentication, audit trails and data authentication to ensure that data have not been changed or altered during transmission.”115?Each doctor who is allowed to use the e-Rx software is provided with a name and unique password that must be protected and learned.116?This has raised the concern that the busy doctor must remember yet a different password.117?Nevertheless, use of a password to enter the electronic prescription system is necessary for security purposes.118?Perhaps in the future, entry may be obtained by using iris patterns, fingerprints or proximity badges.119*16?E-prescriptions may subject physicians to special malpractice concerns.120?Doctors now have the ability to review the medication history of a patient through this new electronic system, so they may be held accountable for an adverse drug reaction with medication ordered by another doctor.121?For example, the e-prescribing system has the ability to notify a doctor of an adverse drug reaction with another pill that the patient is taking.122?Even though the physician did not order that other medication, a duty may be imposed on the doctor to investigate that possible drug interaction.123A. State Responses to Electronic PrescriptionsStates have enacted legislation or adopted regulations to address e-prescribing of non-controlled substances but these laws are of recent vintage which is a reflection of digital medication orders being in their infancy stage.124?As a general rule, these directives regulate the prescribing and filling of e-prescriptions by healthcare professions and pharmacies.125An analysis demonstrates that these laws are not uniform. Some states set up detailed requirements for the use of e-prescriptions and others impose privacy of information safeguards. Several states require pharmacists to exercise professional judgment regarding the accuracy, validity, and authenticity of these digital prescriptions. The difficulty is that some of the state laws meant to implement electronic prescriptions may actually complicate its use. Some of the problems include: contradictory prescription mandates among varying sets of statutes and regulations; requiring pharmacies to keep e-prescription records in hard copy; and patient consent mandates for the digital transmission of their prescription orders.1261. General E-Prescription LawsThe following are sample statutes to provide a flavor of the different approaches taken by the states. Oregon was an earlier adopter of a law on electronic?*17?prescription when it enacted legislation in 2003.127?That state provides that prescription drug orders may be sent electronically from a practitioner authorized to prescribe drugs directly to the dispensing pharmacist of the patient's choice with no intervening person having access to the drug order.128?The form must contain the doctor's telephone number for verbal confirmation, the time and date of transmission, the identity of the pharmacy intended to obtain the order and all other information required for a prescription by federal or state law; and the transmission must be traceable to the prescribing practitioner by a digital signature or other secure method of validation.129?A duty is imposed upon the dispensing pharmacist to exercise professional judgment regarding the accuracy, validity and authenticity of drug order.130?Finally, no additional charge may be made to the patient because the drug order was transmitted electronically.131Michigan amended its law in 2012 to provide that a prescription may be transmitted electronically as long as the order form is transmitted in compliance with the Health Insurance Portability and Accountability Act of 1996.132?The electronically transmitted prescription must include the name, address and telephone of the ordering doctor, the name of the patient, an electronic signature or other identifier that identifies and authenticates the prescriber, the time and date of the transmission, the identity of the pharmacy intended to obtain the order and any other information required by federal or state law.133?Michigan also imposes a duty on the pharmacist to?“exercise professional judgment regarding the accuracy, validity, and authenticity of the transmitted prescription.”134South Carolina provides that a practitioner “may electronically transmit a prescription to a pharmacy” under very rigorous conditions.135South Carolina further requires that a doctor/patient relationship exist; “the prescription must identify the [doctor's] phone number, the time and date of transmission, and the pharmacy intended to receive the transmission.”136?Additionally,[t]he prescription must be transmitted by the authorized practitioner or the practitioner's designated agent to the pharmacy of the patient's choice, and the prescription must be received only by a pharmacy, with no intervening person or entity having access to view, read, manipulate, alter, store, or delete the electronic prescription prior to its receipt at the pharmacy.137*18?The prescription must also contain the doctor's electronic or digital signature or key code.138?Nothing, however, may be construed to prohibit a physician from utilizing a routing firm to transmit a prescription, except that a routing company shall provide its tax identification number to the Board of Pharmacy before offering its services.139Washington provides that a prescription may be sent electronically to a pharmacy of the patient's choice if the electronic transmission “compl[ies] with all applicable statutes and rules regarding the form, content, recordkeeping, and processing of a prescription for a legend drug;” the systems sending and receiving the electronic drug request must be approved by the board, but these requirements do “not apply to facsimile equipment transmitting an exact visual image of the prescription.”140?Medication orders are to be treated as “confidential health information, and may be released only to the patient or the patient's authorized representative, the prescriber or other authorized practitioner then caring for the patient, or other persons specifically authorized by law to receive such information.”141Like a number of other jurisdictions, a duty is imposed upon the pharmacist to “exercise professional judgment regarding the accuracy, validity, and authenticity of the prescription drug order received [electronically], consistent with federal and state laws.”142Alabama has a regulation that is directed to electronic prescriptions for non-controlled legend drugs and mandates that “the prescription must include the patient's name and address, the drug prescribed, strength per dosage unit, directions for use, and the name of the prescriber or authorized agent.”143?Prescriptionstransmitted over an e-prescription network approved by the Board [and] all transmissions must ensure appropriate security and authenticity to include the following: An electronic signature process enabling the pharmacy to ensure the identity of the prescriber; [the] [d]ate and time stamp; [a] transmitting system identifier; [a] prescriber internal sender identification; and a pharmacy internal receiver identification.144California's law is contained in its Administrative Code and provides that “prescriptions may be transmitted by electronic means from the prescriber to the pharmacy.”145?“An electronically transmitted prescription order shall include the name and address of the prescriber, a telephone number for oral confirmation, date of transmission and the identity of the recipient, as well as any other information required by federal or state law or regulations.”146?“A?*19?pharmacy receiving an electronic image transmission prescription shall either receive the prescription in hard copy form or have the capacity to retrieve a hard copy facsimile of the prescription from the pharmacy's computer memory.”147?Also, its law provides that “[a]n electronically transmitted prescription shall be transmitted only to the pharmacy of the patient's choice.”148?“This requirement shall not apply to orders for medications to be administered in an acute care hospital.”149Minnesota's law, which became effective on January 1, 2011, is very detailed and requires that “all providers, group purchasers, prescribers, and dispensers must establish, maintain, and use an electronic prescription drug program.”150?All transactions “must use either HL7 messages or the NCPDP SCRIPT Standard to transmit prescriptions or prescription-related information internally when the sender and the recipient are part of the same legal entity.”151?“If an entity sends prescriptions outside the entity, it must use the NCPDP SCRIPT Standard or other applicable standards required by this section.”152?“[A]ny clinic with two or fewer practicing physicians, [however,] is exempt if the clinic is making a good-faith effort to meet the electronic health records system requirement that includes an electronic prescribing component.”153?The statute then enumerates twelve transactions that must use the NCPDP SCRIPT Standard including transactions such as new prescription transactions, prescription change request transactions and prescription change response transactions.154Pennsylvania law defines an electronically transmitted prescription as an original prescription or refill authorization sent by electronic means, and includes computer-to-computer, computer-to-facsimile machine or e-mail transmission.155?That prescription must be sent directly to a pharmacy of the patient's choice and include the prescriber's telephone number, the date of the transmission, the name of the pharmacy intended to receive the transmission and the prescription must be electronically encrypted or transmitted by technological means designed to protect and prevent access, alteration, manipulation or use by any unauthorized person.156?A hard copy or a readily retrievable image of the prescription information must be stored for at least two years.157*20?2. Controlled SubstancesSince the federal government only recently granted physicians the right to electronically dispense controlled substances, a number of states have not yet addressed this issue. Pennsylvania, however, has considered the issue and noted that “a prescription for a Schedule II, III, IV or V controlled substance is considered a written prescription order on a prescription blank and may be accepted by a pharmacist provided that the transmission complies with this chapter and other requirements....”158?Minnesota provides that Schedule II controlled substances may only be issued through a written prescription or, in an emergency situation, may be dispensed at the oral prescription of a practitioner so long as it is reduced promptly to writing and filed by the pharmacist.159?West Virginia also restricts the issuances of Schedule II substances to an emergency but the statute does not include Minnesota's rule that the prescription must then be reduced to writing.160?Kentucky law specifically notes a Schedule II substance may only be issued through a written prescription while Schedules III, IV, and V drugs may be dispensed following a written, electronic, or oral prescription.161Kansas provides that, in emergency situations, a controlled substance in Schedule II “may be dispensed upon oral prescription of a prescriber [as long as the order is] reduced promptly to writing or transmitted electronically and filed by the pharmacy.”162?However, no refills are allowed for a Schedule II substance.163?California allows physicians to only prescribe Schedule II, III, or IV drugs pursuant to § 4170 of California's Business and Professions Code, which requires that prior to dispensing, the prescriber must offer to provide a written prescription to the patient that the patient may elect to have filled by the prescriber or by any pharmacy.164?Electronic prescriptions for Schedule II drugs in Alabama and Montana cannot be issued without an accompanying hard-copy prescription while e-prescriptions for controlled substances classified as III-V are prohibited.165New York's law is very specific when it comes to issuing controlled substances.166?That state's law provides that “[n]o controlled substance may be [issued] except on an official New York state prescription or on an electronic prescription, and in good faith and in the course of [the doctor's] professional?*21?practice only.”167?The prescription must contain the name, address, and age of the ultimate user; the name, address, Federal registration number, telephone number, and digital signature of the prescribing practitioner; and it must contain specific directions for use, including but not limited to the dosage and frequency of amount and the maximum daily dosage.168?“No such prescription shall be made for a quantity of controlled substances which would exceed a thirty day supply....”169New York, however, permits a physician to order as much as three months of a controlled substance as long as it is given to treat a medical condition that has been specifically identified by the commissioner as allowing the issuance of more than a thirty day supply.170Texas law was amended in 2012 and appears to be one of the most detailed in the United States involving controlled substances.171Texas allows a doctor to e-prescribe a controlled substance listed in Schedule II as long as it sequentially numbered.172?Prescriptions dealing with controlled substances must contain the date the prescription is issued; the controlled substance prescribed; the quantity of controlled substance prescribed, shown numerically if the prescription is electronic; the intended use of the controlled substance or the diagnosis for which it is prescribed with the instructions for use of the substance; the practitioner's name, address, and Federal Drug Enforcement Administration number issued for prescribing a controlled substance in Texas; the name, address, and date of birth or age of the person for whom the controlled substance is prescribed; and, the earliest date on which a pharmacy may fill the prescription.173Each dispensing pharmacist is also mandated to fill in on the official prescription form in the electronic prescription record, each item of information given orally to the dispensing pharmacy and the date the order is filled.174?Electronic prescription shall appropriately note the identity of the dispensing pharmacist; retain with the records of the pharmacy for at least two years the electronic prescription, the name of the patient and send all information required by the director, including any information required to complete an electronic prescription record, to the director by electronic transfer not later than the seventh day after the date the prescription is filled.175*22?IX. Cases Involving E-PrescriptionsThere have not been many reported cases concerning e-prescriptions, presumably because the technology and its widespread use are fairly new. Most of the published litigation involves criminal prosecutions.A. Administrative RulingsOne of the earliest cases dealing with the electronic transmission of a prescription occurred in 1998.176?Walgreen Company was charged with violating “various regulatory statutes and administrative rules relating to pharmacies when, as part of a test program, it [received] prescriptions orders from [doctors] through [e-mail], and provided used computers for some of the physicians participating in the test.”177?In Walgreen Co. v. Wisconsin Pharmacy Examining Bd., the Wisconsin Pharmacy Examining Board “concluded that the use of computer-transmitted prescriptions violated [the law] which require[d] written prescription orders to be signed by the prescribing physician.”178?Although this was a case of first impression “involving computer transmission of prescriptions from physician to pharmacy,” the court found in favor of Walgreens.179?It used as precedent a case in which a facsimile prescription transmission was equivalent to telephone orders.180Logan v. St. Charles Health Council, Inc. involved a claim for a violation of a state privacy statute.181?The plaintiff, a physician, filed suit as the result “of her employment by a federally-assisted health care center.”182?She “became credentialed to provide certain medical services to veterans at [a clinic] [and] was provided an identification code that allowed her to electronically [send] prescriptions to the VA hospital pharmacy, and access VA patient files.”183?The plaintiff claimed that while on vacation, others “began using [her] name and identification code to write prescriptions to be filled at the VA pharmacy” without her knowledge.184?Additionally, the physician-plaintiff asserted that upon her return, the defendants refused to take remedial action to correct the records related to those medication orders.185?The defense argued that “[t]he Federal Tort Claims Act provides the exclusive remedy for damages resulting?*23?from ‘the performance of medical, surgical, dental, or related functions' by Public Health Service employees acting within the scope of their employment.”186?The plaintiff, however, maintained that this federal law should not extend to her claim because her suit did not sound in medical malpractice.187?The court agreed and remanded the matter to state court to proceed on the privacy statute violation.188In Brighton Pharmacy, Inc. v. Colorado State Pharmacy Bd., a pharmacy and pharmacist appealed a challenge to the Colorado State Pharmacy Board ruling that:A pharmacist shall make every reasonable effort to ensure that any order, regardless of the means of transmission, has been issued for a legitimate medical purpose by an authorized practitioner. A pharmacist shall not dispense a prescription drug if the pharmacist knows or should have known that the order for such drug was issued on the basis of an internet-based questionnaire, an internet-based consultation, or a telephonic consultation, all without a valid preexisting patient-practitioner relationship.189“[A] typical scenario addressed by this Rule involves websites to which a consumer can go and request a prescription for a particular pharmaceutical.”190?“Requests for Viagra and hydrocodone constitute a significant portion of the business.”191?The purchaser then responds to a variety of set questions exclusive to the requested drug.192?The person's responses are sent to a doctor who then issues the electronic prescription through a participating pharmacy.193?Often, the parties are from varying states and have never met.194Although the court acknowledged that there are many legitimate scenarios in which this type of transaction could occur, it was in the bounds of the Board to create and uphold the rule prohibiting prescriptions based on internet questionnaires.195B. Criminal CasesUnited States v. Hanny involved the sale of prescription drugs over the Internet.196?The defendant was a retired surgeon who received an offer to work for “a company that sold prescription drugs over the Internet.”197?The company?*24?wanted the physician “to authorize prescriptions to its Internet customers.”198?Even though he “questioned the legality [[[of the business] and consulted an attorney,” the defendant went to work for the company.199?“To authorize the sale, the physician would [affix] his electronic signature to the order.”200The doctor was not required to see the patient, and the electronic order was sent to a participating pharmacy to fill.201?The defendant authorized over 2,400 medication orders and kept a portion of each sale.202?Eventually, the Missouri Board of Medicine informed the physician that his actions were illegal, but he continued to prescribe medication.203?He was then charged with conspiring to distribute a controlled substance outside the normal medical practice.204?The defendant pleaded guilty, and on sentencing, the judge determined that the physician was involved in selling drugs through mass-marketing by means of an interactive computer service and received an enhancement penalty. This decision was upheld on appeal.205United States ex rel. Ciaschini v. Ahold USA Inc. involved a qui tam realtor claim by a whistle blower against a pharmacy alleging it had submitted false claims to the government in order to obtain Medicare and Medicaid payments for prescription drugs provided to customers in violation of the False Claims Act.206?The plaintiff was a licensed pharmacist at The Stop & Shop Supermarket Company in Massachusetts.207?It was practice for the pharmacists employed by the business “‘to electronically submit prescriptions of a Beneficiary of a Federal Health Care Program to Corporate Headquarters, which, in turn, electronically submitted the claim for payment to the Federal Health Care Program through the [firm's] electronic billing system.”’208?The plaintiff alleged that these submissions were false for a number of reasons.209?The court dismissed the suit because the plaintiff failed to provide sufficient details connecting the entry of the information in the computer system to planned claims filed with the government.210United States v. Ghassan Haj-Hamed, involved a physician who was “indicted on twenty-two counts of distributing prescription drugs without a legitimate medical purpose.”211*25?An investigation revealed that Dr. Haj-Hamed routinely spoke to patients for a minute or so without conducting any meaningful physical examination. He then prescribed frequently abused controlled substances to the patients in exchange for cash payments. A confidential source told agents that Dr. Haj-Hamed referred to himself as ‘Dr. Feel Good.’ Others considered him an easy source for obtaining Oxycontin and other controlled substances. It was noteworthy is that he told patients to ‘fill their prescriptions in Ohio or Indiana to avoid Kentucky's electronic prescription-tracking system.212The government eventually dismissed twenty-one counts in exchange for the defendant pleading guilty to one count.213Thacker v. Kentucky dealt with a person arrested for driving under the influence.214?During the traffic stop, a police officer found prescription drug containers for controlled medications and learned that defendant had been charged with prescription forgery.215?A detective then requested a KASPER report, which described the defendant's prescription activity in Kentucky and showed that suspect had been issued overlapping prescriptions.216?The detective then questioned defendant's pharmacies about the prescriptions.217?The appellate court held that the detective's use of the KASPER-derived information system was not an unreasonable search and seizure.218Instead, the search exception to an arrest warrant applied because the State had a substantial interest in tracing drug distributions, and the KASPER system reasonably advanced that interest.219C. MalpracticeIn Washington v. United States, a claim was filed under the Federal Tort Claims Act as the result of an amputation of a leg and subsequent patient death.220?The facts show that the decedent was an insulin dependent diabetic. He “stepped on a nail, causing a puncture wound to his left foot[[[,]” developed an abscess, and was given a prescription which was ordered electronically by the doctor at the VA.221?To obtain the medication after the doctor's visit, the patient presented himself “at the pharmacy located in the VA.”222Following his visit, the patient went to the nurse whose notes show that he was sent to?*26?the pharmacy for medication and instructions.223?The decedent's wife, however, said that the nurse told them that the medicine would be mailed, so they went home.224The patient's name appeared on a list of those who failed to pick up ordered prescriptions.225?Two days later, he returned to the VA and his foot was much worse.226?He was finally given the medication and the pharmacist noted that it was about to be mailed to him.227?Two days later, the patient was seen at the VA Emergency Room with an abscess and cellulitis.228?He was admitted to the hospital and his blood sugar count was highly elevated.229?Eventually, his leg was amputated because the infection was not controlled.230?After a prolonged hospitalization, he died.231?Multiple counts of negligence were advanced including that he was initially sent home with conflicting instructions relating to his medication so he was delayed in starting his antibiotics.232?The court agreed and found in the decedent's favor.233X. ConclusionThe issuance and consumption of medication has a number of problems. Historically, the staffs of pharmacies make millions of calls to physicians in an effort to clarify prescriptions or to inquire about possible medication errors. Doctors and their staff also spend valuable time each day answering these inquires. Electronic prescribing of medication has been heavily promoted as the solution to these problems, and the federal government has spent millions of dollars to encourage physicians to adopt these digital systems. Unfortunately, errors persist with electronic prescribing and healthcare providers question whether the time needed to view and import the information into patient records merits the extra time needed to access and review them.Regardless of the existing issues, so much time and money has been expended with this conversion process that digital prescriptions are not about to disappear.?Most of the experienced difficulties relate to the growing pains of new technology and the reluctance of people to adopt and learn a new system. It is anticipated that these problems will be resolved in the coming years so the prognosis of electronic prescriptions is robust. More and more healthcare providers will adopt this electronic method of prescribing medication especially in?*27?view of the financial penalties being imposed by the federal government for those who do not use this technology.Footnotes1Samuel?D.?Hodge, Jr. is a professor and chair of the Legal Studies Department at Temple University where he teaches both law and anatomy. He lectures nationally on anatomy and trauma and is considered one of the most popular speakers of continuing legal education courses in the country. Professor?Hodge?is a graduate of Temple University Beasley School of Law and is a member of the American College of Legal Medicine.2Allison Kilcourse currently works for the law firm of Galerman and Tabakin, LLP in Jenkintown, Pennsylvania. She is a graduate of Temple University Beasley School of Law and completed her undergraduate studies at Saint Joseph's University, receiving a B.A. in International Affairs and Political Science.3The American Recovery and Reinvestment Act deals with the conversion of paper charts into electronic medical records. It is believed that there are many benefits for this conversion including streamlining patient care and providing long-term savings in the health field. The electronic medical records stimulus also offers financial incentives and penalties to entice physicians to convert to the paperless electronic medical record systems. See generally What are the Benefits of Electronic Medical Records?, , http:// physicians/what-are-the-benefits-of-working-with-emr (last updated May 21, 2013).4Charles S. Hartig,?Regulatory Barriers When Implementing E-Prescribing of Controlled Substances: Could Model Language Be The Solution?, 5 ST. LOUIS U. J. HEALTH L. & POL'Y 213, 217 (2011). As President George Bush noted in his State of the Union Address on January 20, 2004: “By computerizing health records, we can avoid dangerous medical mistakes, reduce costs, and improve care.” He also believes that innovations in electronic health records and the secure exchange of medical data will assist in transforming health care by improving health care quality, reducing paperwork, preventing medical errors, reducing health care costs, improving administrative efficiencies, and increasing access to affordable health care. See generally Transforming Health Care: The President's Health Information Technology Plan, THE WHITE HOUSE, policy200404/chap3.html (last visited June 21, 2013).5VIST-A was the first major initiative into the world of electronic health records and e-prescribing, with the Veteran Affairs' computerization of health records. Douglas Goldstein et al., Case Studies of VistA Implementation — United States and International, in MEDICAL INFORMATICS 20/20, 223, 226, 263 (2007), available at http:// samples/0763739251/39251_ CH09&uscore; 223_284.pdf; see also Charles S. Hartig,?Regulatory Barriers When Implementing E-Prescribing of Controlled Substances: Could Model Language Be The Solution?, 5 ST. LOUIS U. J. HEALTH L. & POL'Y 213, 213-214 (2011).6The National Progress Report on E Prescribing and Safe Rx Rankings, SURESRCIPTS, (last visited June 26, 2013).7The court in?Brody v. Zix Corp., No. 3:04-CV1931-K, 2006 WL 2739352, at *1 (N.D. Tex., 2006)?noted that electronic prescriptions were “intended to alleviate problems with illegible physician handwriting on prescriptions and help doctors streamline the process of dealing with insurance companies and pharmacies.”8E-Prescribing, CENTERS FOR MEDICARE AND MEDICAID SERVICES, http:// Medicare/E-Health/Eprescribing/index.html?redirect=/eprescribing/ (last visited June 21, 2013).9The use and benefits of e-prescriptions was noted as early as 1986. John Donald noted in the British Medical Journal that “[a] computer is used to produce all prescriptions for patients.... This method of prescribing improves safety, saves time, decrease prescribing cost, and provides an instant audit of all important prescribing parameters.”). John B. Donald, On Line Prescribing by Computer, 292 BR. MED. J. 937, 937 (1986).10See id.11What Are Some of The Benefits of E-Prescribing?, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, http:// healthit/toolbox/HealthITAdoptiontoolbox/ElectronicPrescribing/benefitsepres.html (last visited June 21, 2013).12Bo Hovstadius, Bengt Astrand, and Goran Petersson, Dispensed Drugs and Multiple Medications in the Swedish Population: An Individual-Based Register Study, BMC CLINICAL PHARMACOLOGY (2009), http:// 1472-6904/9/11 (last visited February 16, 2012).13Medication Safety Basics, CENTER FOR DISEASES CONTROL AND PREVENTION, (last visited February 16, 2012).14Patterns of Medication Use in the United States, SLONE EPIDEMIOLOGY CENTER AT BOSTON UNIVERSITY at *1 (2006), available at http:// bu.edu/slone/research/studies/slone-survey/.15Id. at 14.16What Are Some of The Benefits of E-Prescribing?, supra note 11.17Jeff Todd,?E-Prescribing In A Changing Legal Environment, 12 RICH. J.L. & TECH. 12, 5 (2006).18Id.19Medication Errors, FDA, http:// drugs/drugsafety/medicationerrors/default.htm (last updated Aug. 08, 2013).20Id.21Christine Stencel & Chris Dobbins, Medication Errors Injure 1.5 Million People and Cost Billions of Dollars Annually, NEWS FROM THE NATIONAL ACADEMIES, (July 20, 2006), http:// www8.onpinews/newsitem.aspx?RecordID=11623.22Id.23Id.24Id.25Id.26Stencel & Dobbins, supra note 21, at 1.27Id.28In Springhill Hospitals, Inc. v. Larrimore, the court noted that a hospital's policy to its druggist is that “the prescribing physician shall be called for consultation whenever the pharmacist deems it necessary upon reviewing a medication order to prevent any unwanted outcome,” did not impose liability separate and apart from doctor if the druggist contacted the physician as required.?Springhill Hospitals, Inc. v. Larrimore, 5 So.3d 513, 521 (Ala. 2008).29LAURA DIETZ ET AL., 25 AM. JUR. 2D DRUGS AND CONTROLLED SUBSTANCES § 249 (2013).30Id.31“When the condition worsens after a prescription error, pharmacies often are quick to claim that this would have happened anyway and that the plaintiff cannot prove that the error made a difference. For example, pharmacies have claimed that a person's infection would not have improved even if an antibiotic—instead of a decongestant—had been dispensed; that ulcerative colitis would have necessitated removal of the large intestine even if an incorrect and ineffective steroid dose had been filed; that no studies show that getting diabetes medication instead of a muscle relaxant causes kidney damage.”Trent B. Speckhals, Not What The Doctor Ordered: prescription errors—when a patient gets the wrong drug, at the wrong strength, or with the wrong directions—can be serious and even deadly. With thorough preparation, you can show that the pharmacy committed malpractice, TRIAL Dec. 1, 2010, at 34.32DEITZ, supra note 29.33Frank M. McCLellan, Reading the RX Right is not Enough: millions of Americans rely on prescribed drugs to stay healthy—and on their pharmacists to protect them from medication errors. Some courts are beginning to recognize that pharmacists must do more than fill prescriptions accurately, TRIAL, May 1, 2002, at 26. “Alabama codified Omnibus Budget Reconciliation Act in 1991” and noted: “Pharmacists, because of their strategic position in the health care system, have traditionally provided drug information to their patients and to other health care professionals.” “Pharmacists are also required to review prescriptions for contraindications, drug interactions, and incorrect dosages. Pharmacists may also discuss side effects, adverse interactions, and contraindications. Pharmacies are required to keep patient medication profiles that incorporate the patient's name, age, sex, patient history, and a list of prescription medications.” Julie L. Doughty,?Walls v. Alpharma: Is the Learned Intermediary Doctrine the Right Cure for Pharmacists in Alabama?, 9 JONES L. REV. 37, 45 (2005).34Id. at 28.35Thomas William Arbon & S. Craig Smith, Prescription for Error, TRIAL, Oct. 1999, at 66. In Simmons v. Apex Drug Stores, Inc., plaintiff sued defendant-pharmacist after receiving an antidepressant, for which he suffered an adverse reaction, instead of a prescription for an appetite suppressant. While the claim was dismissed under a statute of limitations defense, the court held the pharmacist's actions to be a breach of duty and the proximate cause.?Simmons v. Apex Drug Stores, Inc., 506 N.W.2d 562, 564-65 (Mich. App. 1993), modified by?Patterson v. Kleiman, 526 N.W. 2d 879 (Mich. 1994).36Walter v. Wal-Mart Stores, Inc., 748 A.2d 961, 968 (Me. 2000), see also? HYPERLINK "(sc.Search)" \l "co_pp_sp_735_880" Harco Drugs, Inc. v. Holloway, 669 So. 2d 878, 880-81 (Ala. 1995).37Morgan v. Wal-Mart Stores, Inc., 30 S.W.3d 455, 466-67 (Tex. App. 2000).38Kathleen Michon, Medical Malpractice: Common Errors by Doctors and Hospitals, NOLO, (last visited June 20, 2013).39Mary A. Fischer, When Bad Medicine Happens to Good People, OPRAH MAG. (May 2005), Are Some of The Benefits of E-Prescribing?, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, http:// healthit/toolbox/HealthITAdoptiontoolbox/ElectronicPrescribing/benefitsepres.html (last visited June 21, 2013).41Id.42Benefits of E-Prescribing for Pharmacists, SURESCRIPTS, http:// about-e-prescribing/benefits-of-e-prescribing_for-pharmacies (last visited June 20, 2013). Unlike faxes or paper prescriptions, e-prescriptions go directly into the pharmacist's computer. Authorizations for medication renewals can be serviced with just a few keystrokes. When compared with the paper form of prescriptions, electronic prescriptions decrease the amount of employee time needed to finish dispensing activities by 27% for new prescriptions and 10% for renewals (valued at $1.07 and $0.41 per prescription respectively). Id43Shawn Riley, The Benefits of E-prescribing for Today's Physician, , (Nov. 12, 2010), http:// blogsphere/2010/11/12/the-benefits-of-e-prescribing-for-todays-physician/#sthash.botCbGFd.dpuf.44Id.45What is E-Prescribing?, AM. COLL. OF RHEUMATOLOGY, http:// Practice/Office/Hit/E-Prescribing/ (last visited June 20, 2013).46Id.47Id.48Id.49Id.50Id.51The power of the government to influence the practice of medicine is demonstrated by the fact that the number of prescriptions that were sent to drug stores electronically increased by 181% in 2009 compared with 2008. Robert Lowes, Use of Electronic Prescribing Nearly Tripled in 2009, MEDSCAPE (Mar. 5, 2010), . Despite these statistics, only about 36% of all prescriptions were sent electronically in the United States in 2011. Randall Stross, Chicken Scratches vs. Electronic Prescriptions, N.Y. TIMES (Apr. 28, 2012), Much Does An E-Prescribing System Cost?, HEALTH RES. AND SERVS. ADMIN., http:// healthit/toolbox/HealthITAdoptiontoolbox/ElectronicPrescribing/costofepres.html (last visited June 20, 2013).53Considerations in Choosing an E-Prescribing System, AM. COLL. OF PHYSICIANS, practice/technology/eprescribing/medicare_program_choosing.pdf (last visited June 20, 2013).54HEALTH RES. AND SERVS. ADMIN., supra note 52.55Id. See also Crystal Conde, RECs to the Rescue: Regional Centers Help Physicians Use HIT, Tex Med. 2010; 106(4):61-67, http:// Template.aspx?id =16095#sthash.ITC09mUI.dpuf (last visited February 10, 2014).56Id.57Id.58Clinician's Guide to E-Prescriptions, CTR. FOR IMPROVING MEDICATION MGMT., 2011.pdf (last visited June 20, 2013).59Electronic Prescribing (eRx) Incentive Program, Centers for Medicare and Medicaid Services, , erxincentive (last modified July, 17, 2013).60Id.61Id.62Id.63It is anticipated that this incentive program will increase those using electronic prescribing from 15% to 95% in just a decade. Amanda Baltazar, Electronic Prescribing, PHARMACY, http:// pharmacy.od/Technology/a/Electronic-Prescribing.htm (last visited June 20, 2013).64Centers for Medicare and Medicaid Services, , supra note 59.65Law Will Boost E-Prescribing, HHS Secretary Says, GOVERNMENT HEALTH IT (July 21, 2008), Prescribing (eRx) Incentive Program, AM. OSTEOPATH ASS'N, (last visited June 20, 2013).67As of Spring 2013, “more than 291,000 providers and 3,800 hospitals have received incentive payments.” Kelly Kennedy, Incentives Push Doctors To Electronic Medical Records, USA Today (May 22, 2013), http:// story/news/health/2013/05/22/more-doctors-hospitals-using-electronic-medical-records/2350811/.68Electronic Prescribing (eRx) Incentive Program, supra note 66, at 1.69Electronic Prescriptions for Controlled Substances Notice of Approved Certification Process, FED. REGISTER (Mar. 26, 2013), https:// articles/2013/03/26/2013-06918/electronic-prescriptions-for-controlled-substances-notice-of-approved-certification-process.70Electronic Prescriptions for Controlled Substances Clarification, FED. REGISTER (Oct. 11, 2011), regs/notices/2011/fr1019.htm.71Charles Hartig, Regulatory Barriers When Implementing E-Prescribing of Controlled Substances: Could Model Language Be The Solution? 5 ST. LOUIS UNIV. J. HEALTH LAW & POLICY 213, 218 (2011).72Id. at 218-19.73E-Prescribing & Incentives, HORIZON BLUE CROSS AND BLUE SHIELD OF N.J., (last visited Jan. 8, 2014).74Id.75Id.76E-Prescribing Collaborative Program, BLUECROSS BLUESHIELD OF ILLINOIS, (last visited Jan. 8, 2014).77Electronic Prescribing, HUMANA, National Progress Report on E-Prescribing and Safe-Rx Rankings for 2012, SURESCRIPTS, H. Miller & Ida Sim, Physicians' Use of Electronic Medical Records: Barriers and Solutions, 23 HEALTH AFFAIRS 116, 119 (2004), available at M. Grossman et al., Physician Practices, E-Prescribing and Accessing Information to Improve Prescribing Decisions, 20 CENTER FOR STUDYING HEALTH SYSTEM CHANGE 1, 1 (2011), Silverman, E-Prescribing & Handwritten Error Rates Are Similar, PHARMOLAT, (July 5, 2011), Nanji et al., Errors Associated With Outpatient Computerized Prescribing Systems, 18 J. AM. MED. INFORM. ASSOC. 767, 767 (2011), http:// jamia.content/early/2011/06/09/amiajnl-2011-000205.abstract.87Id.88Melissa Krause and Fred Hamlin, E-Prescribing: Expectations and Limitations, Computer Talk, November/December 2010 at 41, (last visited June 26, 2013).89Id.90Id.91Id.92Nanji et al., supra note 86, at 772.93Id.94Id.95Tejal K. Gandhi et al., Outpatient Prescribing Errors and The Impact of Computerized Prescribing, 9 J. GEN. INTERN. MED. 837, 837 (2005), http:// ncbi.nlm.pmc/articles/PMC1490201/pdf/jgi_05414.pdf.96Joy M. Grossman et al., Transmitting and Processing Electronic Prescriptions: Experiences of Physician Practices and Pharmacies, 19 J. AM. MED. INFORM. ASSOC. 353, 356 (2011), http:// ncbi.nlm.pubmed/22101907.97Id.98Id.99Id.100Id.101Id.102Id.103Id.104Id.105Kenneth Terry, Be Warned: e-Prescribing's 6 Big Challenges for Doctors, MEDSCAPE TODAY, (last visited June 20, 2013).106Id.107Id.108Marrisa Torrieri, Safe E-Prescribing: A Primer for Practices, PHYSICIAN PRACTICE, http:// sites/default/files/Kaufman_PhysiciansPractice.e-prescribe.pdf (last visited June 21, 2013).109Id.110Id. at 2.111Id.112Saul N. Weingart et al., Physicians' Decisions to Override Computerized Drug Alerts in Primary Care, ARCH INTERN MED. 2625, 2625 (2003).113Id.114Richard H. Schwartz & Michael Martin, Electronic Prescribing Holds Both Promises and Problems, HEALIO PEDIATRICS: INFECTIOUS DISEASES IN CHILDREN, '/electronic-prescribing-holds-both-promises-and-problems (last visited June 21, 2013).115Id.116Id.117Id.118Id.119Id.120See generally David B. Towel, E-prescribing Malpractice Risks, THE DOCTORS COMPANY, http:// KnowledgeCenter/PatientSafety/articles/CON_ID_004728 (last visited June 25, 2013).121Id.122Id.123Id.124Id.125Jon White, Report on State Prescribing Laws - Implications for E-Prescribing, PRIVACY AND SECURITY SOLUTIONS FOR INTEROPERABLE HEALER INFORMATION EXCHANGE, ES-1, August 2009, http:// sites/default/files/290-05-0015-state-rx-law-report-2.pdf (last visited June 25, 2013).126Id. at 3-1. According to an article published by the American Academy of Orthopedic Surgeons, all 50 states and the District of Columbia have rules or statutes dealing with e-prescriptions. See Jackie Ryan, Nuts and Bolts of E-Prescribing, AAOS NOW, Vol. 7, No. 6, June 2013, http:// news/aaosnow/oct08/managing6.asp (last visited June 25, 2013).127OR. REV. STATE. ANN. § 475.188(2)(a)-(b) (West 2013).128Id.129§ 475.188(2)(c)-(d).130§ 475.188(4).131§ 475.188(8).132See generally?MICH. COMP. LAWS ANN. § 333.17754 (West 2013).133§ 333.17754(1)(a)-(f).134§ 333.17754(3).135S.C. CODE ANN. § 44-117-320(A) (2013).136§ 44-117-320(A)(1)-(2).137§ 44-117-320(A)(3).138§ 44-117-320(A)(5).139§ 44-117-320(C)(1).140WASH. REV. CODE ANN. § 69.50.312(1)(a)-(b)?(West 2013).141§ 69.50.312(1)(d).142§ 69.50.312(1)(f).143ALA. ADMIN CODE r. § 680-X-2-32(a) (2013).144§ 680-X-2-32(b).145CAL. CODE REGS. TIT. 16, § 1717.4(a) (2013).146§ 1717.4(c).147§ 1717.4(e).148§ 1717.4(f).149Id.150MINN. STAT. ANN. § 62J.497(Subd. 2.)(a) (West 2013).151§ 62J.497(Subd. 2.)(c).152Id.153§ 62J.497(Subd. 2.)(d).154§ 62J.497(Subd. 3.)(4)-(6).15549 PA. CODE § 27.201(a) (2013).156§ 27.201(b)-(b)(iv).157§ 27.201(b)(4).158§ 27.201(b)(5).159MINN. STAT. ANN. § 152.11 (West 2013).160W. VA. CODE § 60A-3-308 (2013).161KY. REV. STAT. § 218A.110 (West 2013).162KAN. STAT. ANN. § 65-4123(b)?(West 2013).163Id.164CAL. BUS. & PROF. CODE § 4170(a)(6)?(West 2013).165Jeff Byers, POCP: States' E-Prescribing Rules For Controlled Substances Vary, Health Imaging, (last visted February 13, 2014).166See generally N.Y. PUB. HEALTH LAW § 33321 (McKinney 2013).167§ 3332(1).168§ 3332(2)(a)-(c).169§ 3332(3).170Id.171See generally?TEX. HEALTH & SAFETY CODE ANN. § 481.075 (West 2013).172§ 481.075(a)-(b).173§ 481.075(e)-(g).174§ 481.075(g)(1).175White, supra note 125, at A-1.176See generally Walgreen Co. v. Wis. Pharmacy Examining Bd., No. 97-1513, 217 WL 65551 at *1 (Wis. App., Feb. 19, 1998).177Id.178Id.179Id. at 3.180Id.181Logan v. St. Charles Health Council, No. 1:06CV00039, 2006 WL 1149214 at *1 (W.D. Va., May 1, 2006).182Id.183Id.184Id.185Id.186Id.187Id.188Id.189Brighton Pharmacy Inc. v. Colo. State Pharmacy Examining Bd., 160 P.3d 412, 415 (2007).190Id.191Id.192Id.193Id. at 415.194Id.195Id. at 414.196United States v. Hanny, 509 F.3d 916, 917 (2007).197Id.198Id.199Id.200Id. at 917.201Id.202Id.203Id.204Id. at 918.205Id. at 920.206See generally?United States ex rel. Ciaschini v. Ahold USA Inc., 282 F.R.D. 27 (2012).207Id. at 29.208Id. at n. 40.209Id. at n. 41.210Id. at 35-36.211United States v. Haj-Hamad, 549 F.3d 1020, 1022 (2008).212Id.213Id.214Thacker v. Kentucky, 80 S.W.3d 451, 453 (2002).215Id.216Id.217Id.218Id. at 456.219Id. at 455.220Washington v. United States, No. 1:04 CV 007 TCM, 2005 WL 1799737 at *1 (E.D. Mo., July 27, 2005).221Id.222Id. at 3.223Id.224Id.225Id.226Id. at 4.227Id.228Id.229Id.230Id. at 5.231Id. at 6.232Id. at 8.233Id. at 12. ................
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