(CN) - For J.J.S., a young girl adopted from China with a constellation of severe health challenges including deafness, developmental delays and a condition that prevents her body from naturally clearing menstrual fluid - leading to excruciating internal buildup - a simple prescription delay turned into months of agony. 

Her parents claim that Walgreens Specialty Pharmacy's nearly two-month lag in filling her Lupron Depot shots in 2020 caused permanent harm, including missed doses that exacerbated her central precocious puberty and emotional distress.

On Wednesday, the family's negligence lawsuit against the pharmacy giant reached the 10th Circuit, where a three-judge appeals panel grilled attorneys on whether pharmacies owe patients a legal duty to timely dispense life-altering medications.

The case, Scholl v. Walgreens Specialty Pharmacy, stems from the minor plaintiff's need for the hormone-suppressing injection necessary for temporarily suspending her menstrual cycle. According to court documents, her doctor faxed the prescription to AllianceRx Walgreens Prime - the family's insurer-mandated specialty pharmacy - on May 29, 2020. 

Despite urgent pleas from the Scholls and the physician emphasizing the medical emergency, the pharmacy didn't ship the drug until July 20, after repeated closures and reopenings of the file due to prior authorization issues. 

The parents says this breach of a "duty of timeliness" led to irreversible injuries to their daughter, such as pain, advanced bone age and stunted growth. A lower court dismissed the suit on summary judgment, ruling no such duty exists under Oklahoma law.

In oral arguments before a three-judge panel - U.S. Circuit Judges Scott Matheson, Gregory Alan Phillips and Veronica S. Rossman - the core issues boiled down to two intertwined questions: Does Oklahoma law impose a general duty on pharmacies to fill prescriptions, particularly in emergencies? And did Walgreens assume such a duty through its actions and communications with the family?

Jason McVicker, representing the plaintiffs, argued the case hinges on what duty a pharmacist owes a patient, pointing to Walgreens' own records labeling J.J.S. as a "patient" and deposition testimony from corporate representative Catherine Cirincione admitting time is "of the essence" in filling prescriptions.

McVicker framed the duty in two parts: a common-law obligation under Oklahoma precedent like Wofford v. Eastern State Hospital, where foreseeability of harm creates liability for professionals, and an assumed duty via Walgreens' own conduct. 

He asserted the duty arose when Walgreens "accepted J.J.S.'s prescription as a patient" in June 2020. 

"Was it foreseeable that the failure to timely fill this prescription would injure J.J.S.? The answer is clearly yes," McVicker said.

Judges pushed back hard, seeking clarity on the duty's source and scope. Matheson, an appointee of Barack Obama, repeatedly challenged McVicker's reliance on Wofford, a psychiatry case, questioning its relevance to pharmacies.

"What does it have to do with pharmacies?" he prodded. "There's no factual distinction between those two scenarios?"

When McVicker insisted Wofford rejects insulating professionals from negligence, Matheson pressed: "You need a case that's on point. You don't have an on-point case. Give us a case ... Do you have one?"

McVicker conceded no direct Oklahoma precedent but cited a Fifth Circuit case, Kovaly v. Wal-Mart Stores Texas, and argued the question shouldn't be abstracted away from foreseeability.

Phillips, a fellow Obama appointee, questioned the duty's timing and conditions. 

"Why isn't it a conditional duty? If you get the preauthorization, then we'll do X, Y, Z, but if you don't, good luck," the judge said. 

McVicker responded that Walgreens received authorization in June 2020 and represented that it would handle everything, including to patients generally and the plaintiffs specifically. But when asked if Walgreens had a duty to secure the authorization itself, McVicker affirmed, even if delayed for months: "I think that would be negligent ... certainly on Walgreens."

Matheson and Phillips demanded specific records of communications when authorization was provided. McVicker admitted direct evidence was circumstantial, but blamed the lower court's ruling for lack of notice. 

Representing Walgreens, attorney James Goldschmidt said the pharmacy had no preexisting or timely duty to prescribe the medication.

"We don't reach a duty of timeliness if there's no duty to fill the prescription at all," he said.

Goldschmidt emphasized that Walgreens' specialty pharmacies differ from retail, dealing mainly with providers and insurers. On assumed duty, he insisted affirmative representations were needed. 

"What they told her was, we can't fill the prescription without the preauthorization. That's a very different thing. It's not a promise," the defense attorney said.

Phillips suggested Walgreens "lured" the family by implying filling upon authorization but Goldschmidt disagreed, noting no explicit promise and a disputed voicemail about file closure. Matheson asked if receiving authorization triggered duty via reasonable inference. 

"Why can't one infer ... that when the doctor gets it, we'll fill it?" he asked. 

Goldschmidt replied it required an affirmative response like "we'll be right on it," which is absent in the plaintiffs' claims.

"To assume a duty, we need something showing an affirmative representation," he said.

On timeliness, Goldschmidt noted Walgreens did eventually fill the prescription, so any assumed duty was met.

"You would actually have to show a representation specific to how quickly we'll do that," he explained. 

Matheson probed if the drug's nature implied urgency.

"Are there certain drugs ... where it's inherently a time-sensitive situation?" he asked.

Goldschmidt conceded that possibly but said without assurance, no duty arose.

Rossman, a Joe Biden appointee, also sat on the panel. The case was submitted without indicating a timeline for decision.

Source: Courthouse News Service