NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12409

    CARMEN CORREA, administratrix, 1 vs.     ANDREAS P. SCHOECK
                           & others. 2


          Middlesex.     February 6, 2018. - June 7, 2018.

   Present:    Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                             Kafker, JJ.


Pharmacy. Wrongful Death. Negligence, Wrongful death,
     Pharmacy. Interest. Damages, Wrongful death,
     Interest. Judgment, Interest. Practice, Civil, Judgment,
     Interest.



     Civil action commenced in the Superior Court Department on
October 19, 2012.

     The case was heard by Dennis J. Curran, J., on a motion for
summary judgment, and entry of separate and final judgment was
ordered by him.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Thomas M. Greene (Michael Tabb & Simon L. Fischer also
present) for the plaintiff.

     1   Of the estate of Yarushka Rivera.
     2 New England Neurological Associates, P.C.; and Walgreen
Eastern Co., Inc.
                                                                    2


     Bruce H. Murray for Walgreen Eastern Co., Inc.
     Tory A. Weigand, for Andreas P. Schoeck & another, was
present but did not argue.
     The following submitted briefs for amici curiae:
     Mary Ellen Kleiman, of the District of Columbia, & John F.
Brosnan for National Association of Chain Drug Stores, Inc.
     Kathleen L. Nastri, of Connecticut, Jeffrey R. White, of
the District of Columbia, & Jonathan A. Karon, Thomas R. Murphy,
Kristie A. LaSalle, & Kevin J. Powers for American Association
of Justice & another.
     Wells G. Wilkinson & Victoria Pulos for Health Law
Advocates, Inc., & others.


     LENK, J.    In this case, we address the novel issue whether

a pharmacy has a legal duty to notify a prescribing physician

when a patient's health insurer informs the pharmacy that it

requires a "prior authorization" form 3 from the physician.

Health insurers often require prescribing physicians to submit

prior authorization forms to establish that prescriptions for

particular medications are medically necessary and cost-

effective.    Since it is the pharmacy that submits the claim for

reimbursement, however, only the pharmacy, and not the physician

or the patient, is notified when a prescribing physician must

complete a prior authorization form and submit it to the

insurer.

     Prior authorization was necessary in order for Yarushka

Rivera to obtain insurance coverage for Topamax, a medication

she needed to control life-threatening seizures.    Rivera was


     3   See 130 Code Mass. Regs. §§ 406.422, 450.303 (2016).
                                                                     3


diagnosed with seizure disorder, which is also known as

epilepsy, a few months before her nineteenth birthday.    Rivera's

insurer, MassHealth, twice paid for her Topamax prescription

without issue.   Once Rivera reached her nineteenth birthday,

however, the insurer refused to pay for the prescription because

it had not received the prior authorization form required for

Topamax patients over the age of eighteen.   Her family then made

numerous attempts to obtain the prescribed medication from her

pharmacy, Walgreen Eastern Co., Inc. (Walgreens), to no avail.

Rivera was unable to afford the medication without insurance,

and thus could not take her medication in the months before she

suffered a fatal seizure at the age of nineteen.

     Carmen Correa, Rivera's mother, subsequently brought this

action for wrongful death and punitive damages against

Walgreens; Rivera's neurologist, Dr. Andreas P. Schoeck

(Schoeck); and Schoeck's office, New England Neurological

Associates, P.C. (NENA).   Correa maintains that Walgreens

repeatedly told Rivera and members of her family that Walgreens

would notify Schoeck of the need for prior authorization, but

Schoeck and NENA deny ever receiving notice.   A Superior Court

judge allowed Walgreens's motion for summary judgment, on the

ground that Walgreens owed no legal duty to Rivera to notify

Schoeck and NENA of the need for prior authorization.    The judge

entered final judgment against Walgreens and stayed the claims
                                                                       4


against Schoeck and NENA so that Correa could expedite her

appeal.     He also stayed the accrual of prejudgment interest as

to Schoeck and NENA pending resolution of the appeal.

     Because we conclude that Walgreens had a limited duty to

take reasonable steps to notify both the patient and her

prescribing physician of the need for prior authorization each

time Rivera tried to fill her prescription, we reverse the

allowance of summary judgment for Walgreens.      Walgreens's duty

extends no further, however -- the pharmacy was not required to

follow up on its own or ensure that the prescribing physician in

fact received the notice or completed the prior authorization

form.     We conclude also that the judge erred in staying the

accrual of prejudgment interest. 4

     1.    Background.   a.   Facts.   On May 13, 2009, Rivera

suffered a seizure; it appears to have been her first.      Rivera

was eighteen at the time and living under the care of her

mother, Correa, and her stepfather, Julio Escobar.      Rivera was

taken to a hospital, where she was treated for seizure disorder.

Upon discharge three days later, a physician at the hospital

prescribed her Topamax, an antiepileptic medication.      Later that

     4 We acknowledge the amicus briefs submitted by the National
Association of Chain Drug Stores, Inc.; the American Association
of Justice and the Massachusetts Academy of Trial Attorneys; and
Health Law Advocates, Inc., the Massachusetts Law Reform
Institute, the Center for Health Policy and Law of Northeastern
University, and the Public Health Advocacy Institute.
                                                                     5


month, Rivera began seeing a neurologist, Schoeck, who agreed

that she should continue taking Topamax.

     In June, 2009, Rivera filled the Topamax prescription

written by the hospital physician at her local Walgreens

pharmacy.   MassHealth covered payment for the prescription

without incident.   Later that month, Rivera and her family tried

to refill the Topamax using Schoeck's prescription, but a

Walgreens pharmacist explained that it was too early to do so

because Rivera had not finished the previous prescription.     The

pharmacist also informed them that, in the future, MassHealth

would require a prior authorization form, to be completed by

Rivera's prescribing physician, in order for the insurer to

cover the cost of the medication.   According to Correa, the

pharmacist said that it was Walgreens's policy to notify the

prescriber by facsimile or telephone of the need for prior

authorization, and that Walgreens would contact Schoeck, but

there is no evidence that Schoeck was so notified.

     At that time, MassHealth required a prior authorization

form to cover the cost of Topamax for individuals over eighteen

years of age.   Rivera was eighteen when she began taking

Topamax, but would turn nineteen shortly thereafter, on August

3, 2009.    The prior authorization form is predominantly intended

to establish the medical necessity and effectiveness of the

prescribed medication, and to ensure that there are not "more
                                                                     6


cost-effective alternatives," as MassHealth "strongly advocates

the use of generic drugs."   Executive Office of Health and Human

Services, Introduction to MassHealth Drug List,

https://masshealthdruglist.ehs.state.ma.us/MHDL/pubintro.do

[https://perma.cc/5H6U-U6UX].    During the relevant time period,

the form used was two pages long and took ten minutes or less to

complete; it required entry of information about the patient's

MassHealth membership, diagnosis, prescribed medication, basic

history, prescriber information, and the prescriber's signature.

     A patient's prescribing physician must submit the prior

authorization form to MassHealth; pharmacies and patients are

unable to complete the form.    MassHealth notifies only the

pharmacy of the need for prior authorization, however, because

it is the pharmacy that submits the claim for coverage;

MassHealth does not notify the patient or the physician when

prior authorization is required.    Although they are not required

to do so by law or regulation, pharmacists at Walgreens and

other pharmacies routinely send a facsimile transmission to the

prescribing physician with the relevant patient information to

alert the physician to the need for prior authorization, and

sometimes place telephone calls to follow up on the required

forms.

     When prescription coverage is denied by an insurer due a

need for prior authorization, Walgreens's computer system
                                                                   7


immediately notifies the pharmacist.   Upon issuing the alert,

the computer system also allows its employees, with a single

"click" of a computer "mouse," to send a facsimile message to

the prescribing physician, with the necessary patient and

medication information, notifying the physician of the need for

prior authorization.   Walgreens pharmacists sometimes also

follow up with prescribing physicians regarding prior

authorization via telephone, particularly when a patient

requests that they do so.   During the relevant time period,

however, Walgreens did not have a practice of creating or

maintaining records of any communications or attempted

communications with physicians regarding the need for prior

authorization.

     NENA, in turn, receives notices that prior authorization is

needed from pharmacies via facsimile on a daily basis.   NENA

first learns that a patient requires prior authorization when it

receives a facsimile transmission from a pharmacy, not from any

other sources; it is rare for patients to contact NENA directly

regarding the need for prior authorization.   Upon receipt of a

facsimile transmission concerning the need for prior

authorization, Schoeck's assistant fills out as much of the

prior authorization form as she can and gives the form to

Schoeck to complete.   The assistant then submits the form via
                                                                     8


facsimile to the insurer on the same day that she receives the

notice.

     Rivera's family was again able to fill Schoeck's

prescription without prior authorization on July 26, 2009, as

she was not yet over the age of eighteen.    At that visit, a

Walgreens pharmacist stated that any future prescriptions would

not be covered by MassHealth without the prior authorization

form, since she would turn nineteen before the prescription

could be refilled.    The pharmacist told Rivera's family to

inform Schoeck of the need for the form.    According to Correa,

that pharmacist also assured them that Walgreens would notify

Schoeck by telephone or facsimile of the need for prior

authorization, as was customary policy.    There is no evidence in

the record that the pharmacist so notified Schoeck.

     Rivera ran out of her Topamax supply in August, 2009.

Between July and October, 2009, Escobar spoke with Schoeck's

office approximately seven times via telephone concerning the

required prior authorization form.    Escobar attests that he made

these calls to assist Walgreens's efforts, as he and his family

relied on Walgreens to obtain the appropriate paperwork from

Schoeck's office.    He explained that he, Rivera, and Correa

would not have known how to obtain the necessary paperwork

without Walgreens's assistance.    Sometime in August, 2009,

Escobar also telephoned a Walgreens employee, who again
                                                                     9


recommended that Rivera's family contact Schoeck about the need

for prior authorization.

     Rivera suffered a second seizure on September 2, 2009,

while she was visiting Rhode Island.    She was hospitalized and

discharged with a small supply of Topamax and a prescription for

more of the medication.    On September 8, 2009, Rivera, Correa,

and Escobar attempted to fill the prescription for Topamax

obtained in Rhode Island at the same local Walgreens, but a

Walgreens pharmacist stated that MassHealth had again denied

coverage due to lack of prior authorization.    Correa maintains

that this pharmacist also promised to contact Schoeck regarding

the necessary form.   There is no evidence that Walgreens

followed up with Schoeck.    At that visit, Rivera and her family

were told that they could get the prescription filled if they

paid the full $399.99 cost of the medication out of pocket, but

they were unable to afford that amount.    They told the Walgreens

employee that they would contact Schoeck's office again.

     Rivera and her family unsuccessfully tried to fill

Schoeck's prescription for Topamax four more times, on

September 18, September 28, October 12, and October 13, 2009.

Correa maintains, and Walgreen denies, that a pharmacist assured

Rivera and her family on each occasion that Walgreens would

notify Schoeck about the necessary form.    Correa and Escobar

claim that if Walgreens had not made such assurances, they would
                                                                  10


have gone to a different pharmacy to assist them in obtaining

prior authorization.   None of Walgreens's employees has any

memory of communicating or attempting to communicate with

Schoeck or with NENA concerning Rivera's Topamax prescription.

Walgreens, along with some of the pharmacists who directly

interacted with Rivera's family, conceded knowledge, however,

that if a customer suffering from epilepsy suddenly stopped

taking Topamax, that customer could suffer a seizure.

      According to Correa, at an appointment on October 19, 2009,

Rivera told Schoeck that she had not been able to take her

Topamax since the end of August, because his office had not

completed the necessary paperwork, and he told her that he would

have his assistant look into it.   Schoeck and NENA maintain that

they were never notified by pharmacists or family members about

the need for prior authorization in this case.

      Rivera died after suffering a third seizure, on October 29,

2009. 5




      5In June, 2009, after she suffered her first seizure,
Rivera also began seeing a psychiatrist who diagnosed her with
bipolar disorder and depression. The psychiatrist prescribed
her Lamictal and Celexa for her mood disorders. Rivera was able
to fill these prescriptions at her local Walgreens without
incident. Two weeks before Rivera's death, the psychiatrist
lowered the dosage of Lamictal. According to Correa, in
September, 2009, while Rivera was hospitalized in Rhode Island,
Schoeck's assistant told Escobar that Lamictal also was an
effective treatment for seizures, so even if Rivera could not
                                                                   11


     b.   Prior proceedings.   Acting on behalf of Rivera's

estate, Correa brought this action for wrongful death and

punitive damages against the defendants, alleging that the

defendants' negligence caused her daughter's death.    See G. L.

c. 229, §§ 2, 6.    Walgreens moved for summary judgment on the

ground that it owed no legal duty to Rivera.    The motion judge

allowed Walgreens's motion for summary judgment without a

written decision, and invited Walgreens to file a motion for

entry of a separate and final judgment.

     Correa moved for reconsideration, or, alternatively, for

entry of a separate and final judgment against Walgreens, and a

stay of trial, so that she could appeal from the decision.    In

their opposition to Correa's motion, Schoeck and NENA also

sought a stay of any accrual of prejudgment interest pending

Correa's appeal of the allowance of Walgreens's motion for

summary judgment.

     The motion judge issued a written opinion denying the

request for reconsideration.    In order to facilitate Correa's

appeal and to prevent duplicative trials, he entered a separate

and final judgment against Walgreens and stayed the claims

against Schoeck and NENA.    In addition, the judge stayed the

accrual of prejudgment interest, opining that, because Schoeck


obtain Topamax, she would be "fine" if she continued to take
Lamictal.
                                                                       12


and NENA were not responsible for the delay that the stay of

claims would cause, allowing prejudgment interest to accrue

during the appeal would result in a windfall to Correa.       Correa

unsuccessfully moved to alter or amend the judgment. 6

     On appeal, Correa maintains that Walgreens had a legal duty

to notify Schoeck of the need for prior authorization or,

alternatively, that Walgreens voluntarily assumed such a duty.

She also argues that the motion judge erred in staying the

accrual of prejudgment interest as to Schoeck and NENA.

     2.   Discussion.   a.   Standard of review.   "The standard of

review of a grant of summary judgment is whether, viewing the

evidence in the light most favorable to the nonmoving party, all

material facts have been established and the moving party is

entitled to a judgment as a matter of law."     Augat, Inc.

v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).     We review

such decisions de novo, and therefore accord no deference to the

decision of the motion judge.     Chambers v. RDI Logistics, Inc.,

476 Mass. 95, 99 (2016).




     6 NENA also sought summary judgment as to the punitive
damages claim against it on the ground that it could not be
vicariously liable for punitive damages. A different motion
judge denied the motion. That judge noted that the complaint
alleged gross negligence, and the record presented a genuine
issue of material fact whether Schoeck's conduct amounted to
gross negligence.
                                                                    13


     b.    Duty of care.   To prevail in her wrongful death suit,

Correa must prove that the defendants were negligent.     Afarian

v. Massachusetts Elec. Co., 449 Mass. 257, 261 (2007).     The

elements of a negligence claim are that "the defendant owed the

plaintiff a duty of reasonable care, that the defendant breached

this duty, that damage resulted, and that there was a causal

relation between the breach of the duty and the

damage."   Jupin v. Kask, 447 Mass. 141, 146 (2006).    At issue

here is whether Correa can establish a legal duty of care on

Walgreens's part.   "[T]he existence or nonexistence of a duty is

a question of law, and is thus an appropriate subject of summary

judgment."   Id.

     "The concept of 'duty' . . . 'is not sacrosanct in itself,

but is only an expression of the sum total of . . .

considerations of policy which lead the law to say that the

plaintiff is entitled to protection. . . .    No better general

statement can be made than that the courts will find a duty

where, in general, reasonable persons would recognize it and

agree that it exists'" (alterations omitted).    Id.,

quoting Luoni v. Berube, 431 Mass. 729, 735 (2000).     The duty of

care is derived from "existing social values and customs and

appropriate social policy."     Jupin, supra at 143,

quoting Cremins v. Clancy, 415 Mass. 289, 292 (1993).
                                                                     14


Accordingly, "imposition of a duty generally responds to changed

social conditions" (citation omitted).     Jupin, supra at 147.

     In light of the evolving nature of the pharmacist-patient

relationship, Walgreens's specific knowledge regarding the need

for prior authorization, the industry-wide customs and practices

of pharmacies handling prior authorization requests, and the

foreseeability of the harm to Rivera, we conclude that Walgreens

owed a limited duty to take reasonable steps to notify both

Rivera and Schoeck of the need for prior authorization each time

Rivera tried to fill her prescription.

     i.   Pharmacist-patient relationship.    The pharmacist-

patient relationship is unlike that of a typical store vendor

and customer.     Pharmacists are no longer "confined to standing

behind a counter and distributing prescription medications to

patients," and "now also do many other things.'"     Van Beek, The

Future for Pharmacists:     Does Physician-Pharmacist Collaborative

Practice Mean Collaborative Liability?, 36 J. Legal Med. 442,

444 (2015).   Pharmacists also are particularly well suited to

"relay critical information back to prescribers" (citation

omitted).   Id.    See Baker, The OBRA 90 Mandate and Its

Developing Impact on the Pharmacist's Standard of Care, 44 Drake

L. Rev. 503, 504 (1996) ("During the 1970s, pharmacists began

searching for a new role -- one more compatible with their

education and knowledge.     [They were] [u]nwilling to be
                                                                   15


relegated to the simple functions of 'count, pour, lick and

stick' . . .").

     In Massachusetts, pharmacists are statutorily obligated to

take certain steps to identify and prevent medical risks to a

patient.   General Laws c. 94C, § 21A, requires pharmacists to

"conduct a prospective drug review before each new prescription

is dispensed or delivered to a patient or a person acting on

behalf of such patient."   The corresponding regulations of the

Board of Registration in Pharmacy specify that the required

"prospective drug utilization review" includes a "reasonable

effort" to identify, inter alia, instances of "drug-disease

contraindication," "incorrect drug dosage or duration of drug

treatment," and "drug-allergy interactions."   247 Code Mass.

Regs. § 9.07(2)(a) (2013).   Upon learning of such dangers, "the

pharmacist shall take appropriate measures to ensure the proper

care of the patient."    247 Code Mass. Regs. § 9.07(2)(b) (2013).

The regulations specifically contemplate that this "may include

consultation with the prescribing practitioner and/or direct

consultation with the patient."   Id.

     General Laws c. 94C, § 21A, further requires pharmacists to

"offer to counsel" any patient when the pharmacist fills a new

prescription, either face-to-face or by telephone, "except when

the patient's needs or availability require an alternative

method of counseling."   "For the purposes of medical assistance
                                                                    16


and other third party reimbursements or payment programs, any of

the [aforementioned] methods, or a combination thereof, shall

constitute an acceptable offer to provide counseling."     Id.

That these statutes and regulations refer to those obtaining

prescriptions as "patients" rather than "customers" also

indicates that the relationship between pharmacist and patient

goes beyond that of a typical commercial relationship.

     Thus, while pharmacists are not required by law or

regulation to facilitate prior authorization processes for

patients, it is evident that they have some role in furthering

the well-being of their patients, and are well situated to

assist patients with certain issues regarding their medications.

     ii.   Specific knowledge. 7   This court has long recognized

that pharmacies have a duty to fill prescriptions

correctly.   Cottam v. CVS Pharmacy, 436 Mass. 316, 320 (2002),

citing Andreottala v. Gaeta, 260 Mass. 105, 109 (1927),

and Nesci v. Angelo, 249 Mass. 508, 511 (1924).     See G. L. c.

94C, § 19 (a) ("The responsibility for the proper prescribing


     7 The record before us makes no meaningful distinction
between "pharmacists" and "pharmacies," and the parties use the
terms interchangeably. We conclude that, in the context of
notifying patients and physicians of the need for prior
authorization, the duties of pharmacists and pharmacies are
coextensive. See generally Cottam v. CVS Pharmacy, 436 Mass.
316, 320-323 (2002) (using "pharmacist" and "pharmacy"
interchangeably in finding no duty to warn patients of general
side effects of medications).
                                                                  17


and dispensing of controlled substances shall be upon the

prescribing practitioner, but a corresponding responsibility

shall rest with the pharmacist who fills the prescription").

In Cottam, supra at 320-321, this court held that pharmacists do

not, however, have a duty to warn patients of general side

effects of prescription drugs.    The court reasoned that under

the "learned intermediary doctrine," which traditionally has

been applied to drug manufacturers, "a prescription drug

manufacturer's duty to warn of dangers associated with its

product runs only to the physician; it is the physician's duty

to warn the ultimate consumer."    Id. at 321, quoting McKee

v. American Home Prods. Corp., 113 Wash. 2d 701, 709 (1989).

Thus, "[r]equiring the manufacturer to provide warnings directly

to the consumer would interfere with the doctor-patient

relationship."   Cottam, supra.   The court in Cottam extended the

learned intermediary doctrine to pharmacies, as the reasons

behind the doctrine applied "with equal force" to

pharmacies.   Id. at 321-322, citing McKee, supra at 711.

     Nonetheless, Cottam left open the possibility that a legal

duty exists in circumstances where a "pharmacist failed to act

on specific knowledge that he or she possessed regarding danger

to a particular customer."   Cottam, supra at 322-323

(acknowledging that courts in other jurisdictions have imposed

duties on pharmacies in cases that involve "more than a simple
                                                                   18


failure to warn," such as "filling a prescription for what the

pharmacist knew to be a lethal dose, . . . failing to warn the

customer when filling two prescriptions that adversely interact

with one another, . . . and . . . failing to warn the customer

of the drug's adverse interaction with alcohol where the

customer was known by the pharmacist to be an alcoholic"). 8   The

"modern trend of case law" is that "the learned-intermediary

doctrine does not insulate a pharmacist from liability when he

or she has knowledge of a customer-specific risk.    Instead, when

a pharmacist has such knowledge, the pharmacist has a duty to

warn the customer or to notify the prescribing doctor of the

customer-specific risk."   (Footnote omitted.)   See Klasch

v. Walgreen Co., 127 Nev. 832, 840 (2011).   See also Happel

v. Wal–Mart Stores, Inc., 199 Ill. 2d 179, 197 (2002) ("we hold

that a narrow duty to warn exists where, as in the instant case,

a pharmacy has patient-specific information about drug

allergies, and knows that the drug being prescribed is

contraindicated for the individual patient").

     We consider this "modern trend" instructive.    Given their

role in patient care, pharmacists are trained and well situated

to notify patients and physicians when pharmacists have specific

     8 See, e.g., Lasley v. Shrake's Country Club Pharmacy, Inc.,
179 Ariz. 583 (Ct. App. 1994); Horner v. Spalitto, 1 S.W.3d 519
(Mo. Ct. App. 1999); Hand v. Krakowski, 89 A.D.2d 650 (N.Y.
1982).
                                                                   19


knowledge regarding a risk of harm to a particular customer

filling a prescription.   Contrary to Walgreens's argument, this

case is readily distinguishable from the circumstances

in Cottam, 436 Mass. at 321, where imposing a duty on

pharmacists to warn patients of general medication side effects

would have interfered with the doctor-patient relationship.

Because MassHealth does not notify prescribing physicians of the

need for prior authorization, pharmacies actually facilitate the

doctor-patient relationship by notifying the physician of this

need, and thus helping to ensure that the patient obtains

insurance coverage for the medication that the doctor wants the

patient to take.   See Horner v. Spalitto, 1 S.W.3d 519, 523 (Mo.

Ct. App. 1999) (Pharmacists "are in the best position to contact

the prescribing physician, to alert the physician about the dose

and any contraindications relating to other prescriptions the

customer may be taking as identified by the pharmacy records,

and to verify that the physician intended such a dose for a

particular patient.   We do not perceive that this type of risk

management unduly interferes with the physician-patient

relationship.   Instead, it should increase the overall quality

of health care" [footnote omitted]).

     To determine whether the duty to act on specific knowledge

regarding potential harm to a particular patient extends to

situations where prior authorization is needed, we turn to the
                                                                    20


relevant industry practices, which tend to indicate the expected

standard of care in the industry.

     iii.    Industry practices.   The Restatement (Second) of

Torts § 299A (1965) (Restatement) provides that, "[u]nless he

represents that he has greater or less skill or knowledge, one

who undertakes to render services in the practice of a

profession or trade is required to exercise the skill and

knowledge normally possessed by members of that profession or

trade in good standing in similar communities."    This principle

"applies to any person who undertakes to render services to

another in the practice of a profession, such as that of

physician or surgeon, dentist, [or] pharmacist . . . ."     Id. at

§ 299A comment b.

     Walgreens conceded at oral argument that it has a duty to

notify the patient of the need for prior authorization, but

maintains that it has no duty to notify the prescribing

physician.   Correa submitted undisputed evidence in her motion

for summary judgment, however, that Walgreens pharmacists

routinely notify patients and prescribers' offices directly of

the need for prior authorization, and that, according to her

proffered expert, this practice is typical of the industry. 9


     9 Walgreens contends that notifying physicians of the need
for prior authorization is not part of its practice, and that it
merely requires employees to notify the customer of the need for
                                                                  21


Indeed, Schoeck and NENA regularly receive notices of the need

for prior authorization from pharmacies, and it is rare for them

to receive notice from a patient.   Walgreens pharmacists are

even trained to provide such notice, and the computer system

they use has built-in mechanisms to assist them in doing so.

     The skill and knowledge of pharmacists today involve more

than the dispensing of pills.   A pharmacist exercising the skill

and knowledge normally possessed by members of the professional

community ordinarily would notify a patient and the prescribing

physician that prior authorization is needed. 10




prior authorization and advise the customer to notify his or her
physician. In their depositions, Walgreens employees, in turn,
characterized their facsimile transmissions and telephone calls
to prescribing physicians as a mere "courtesy" to their
customers. These characterizations are not dispositive. While
a duty may be created by a company's internal policies, a legal
duty also may rest on industry practices and policy
considerations for an industry as a whole. See Jupin, 447 Mass.
at 143, 146-147.
     10 The American Pharmacists Association (APhA) contemplates

greater pharmacist involvement in the prior authorization
process, in order to help patients overcome what it considers a
"barrier[] to patient care." American Pharmacists Association
Policy Manual (2017), http://www.pharmacist.com/policy-manual
[https://perma.cc/JM8Y-8259] (select "Patient/pharmacist
Relationships" and then "Prior Authorization"). Consistent with
industry practices, APhA "supports prior authorization programs
that allow pharmacists to provide the necessary information to
determine appropriate patient care." Id. Indeed, APhA's policy
manual asserts that "[p]rescription drug benefit plan sponsors
and administrators should actively seek and integrate the input
of network pharmacists in the design and operation of prior
authorization programs." Id.
                                                                       22


        iv.    Foreseeability.   "[A]s a general principle of tort

law, every actor has a duty to exercise reasonable care to avoid

physical harm to others" (footnote omitted).        Jupin, 447 Mass.

at 147, quoting Remy v. MacDonald, 440 Mass. 675, 677 (2004).

"A precondition to this duty is, of course, that the risk of

harm to another be recognizable or foreseeable to the

actor."       Jupin, supra.   "To the extent that a legal standard

does exist for determining the existence of a tort duty . . . ,

it is a test of the 'reasonable foreseeability' of the

harm."    Id., quoting McClurg, Armed and Dangerous:     Tort

Liability for the Negligent Storage of Firearms, 32 Conn. L.

Rev. 1189, 1230 (2000).

     If the pharmacist does nothing with the knowledge that

prior authorization is needed, the patient will not be able to

obtain insurance coverage for the medication.       This could cause

foreseeable harm to the patient, who might not otherwise be able

to pay for potentially life-saving medications, as was the case

here.    See G. L. c. 118E, § 9 (MassHealth covers persons "whose

income and resources are insufficient to meet the costs of their

medical care").      To prevent this harm, the patient must be made

aware that there is a barrier to obtaining the prescription, and

that the physician's input is necessary to overcome this

barrier.
                                                                   23


     Notice to the patient, however, is insufficient to

discharge the pharmacy's duty.   It is particularly important in

these circumstances that the pharmacy also notify the physician

directly to avoid foreseeable harm.   Correa submitted undisputed

interrogatory responses that, according to her proffered expert,

requests that a physician complete a prior authorization form

are more effective when they come from pharmacies, as opposed to

patients, in part because much of the information needed, and

the proper forms and procedures, are known only to pharmacies.

The expert also asserts that the urgency of requests from a

patient might be discounted as the patient's unnecessary anxiety

or oversensitivity, whereas the pharmacy could be viewed as a

more objective source of information.

     Given present pharmacy practices, recognition of this

limited duty does not place an onerous burden on pharmacies. 11


     11This duty will not unduly burden smaller, independent
pharmacies. In most instances, those pharmacies, just as
national chain pharmacies, likely use computers to run their
businesses. According to amicus curiae National Association of
Chain Drug Stores, Inc., ninety-seven per cent of prescriptions
filled in Massachusetts are paid for by insurance. Pharmacies
regularly employ specialized computer systems to navigate the
numerous health plans available to patients. See P.D. Fox, AARP
Public Policy Institute, Prescription Drug Benefits: Cost
Management Issues for Medicare, at 22 (Aug. 2000), https://
assets.aarp.org/rgcenter/health/2000_09_cost.pdf [https://perma
.cc/KZ6R-5DBA]. See also ModernMedicine Network, Health
Information Technology in the Community Pharmacy, Drug Topics
(Aug. 10, 2016), available at http://drugtopics.modernmedicine
.com/drug-topics/news/health-information-technology-community-
                                                                  24


Nor does it require pharmacies to monitor or supervise

prescribing physicians.   As to the latter, Walgreens argues that

Massachusetts common law does not recognize a duty to control a

third party's conduct to prevent that person from causing harm

to another, absent a "special relationship." 12   The duty we



pharmacy [https://perma.cc/RZ4W-GTC4] ("Software programs that
receive prescriptions and aid in dispensing medications are
already in wide use in community pharmacies"). To the extent
that small pharmacies operate without computers, they may use
telephone or facsimile transmissions to notify prescribing
physicians that prior authorization is needed.
     12 Walgreens's reliance on the Restatement is unavailing.

The Restatement identifies two main types of special
relationships that may give rise to legal duties, neither of
which is applicable here. First, the Restatement provides that

     "[t]here is no duty so to control the conduct of a third
     person as to prevent him from causing physical harm to
     another unless (a) a special relation exists between the
     actor and the third person which imposes a duty upon the
     actor to control the third person's conduct, or (b) a
     special relation exists between the actor and the other
     which gives to the other a right to protection."

Restatement (Second) of Torts § 315 (1965). This has no
relevance to the situation here. Second, "[a]n actor in a
special relationship with another owes the other a duty of
reasonable care with regard to risks that arise within the scope
of the relationship." Restatement (Third) of Torts: Liability
for Physical and Emotional Harm § 40(a) (2012). These "special
relationships" include

     "(1) a common carrier with its passengers, (2) an innkeeper
     with its guests, (3) a business or other possessor of land
     that holds its premises open to the public with those who
     are lawfully on the premises, (4) an employer with its
     employees who, while at work, are: (a) in imminent danger;
     or (b) injured or ill and thereby rendered helpless, (5) a
     school with its students, (6) a landlord with its tenants,
     and (7) a custodian with those in its custody, if: (a) the
                                                                   25


recognize in this case, however, does not require pharmacies to

control the actions of prescribing physicians by, for example,

imposing enforcement mechanisms should a physician fail to

complete a prior authorization form.   Rather, pharmacies simply

must take reasonable steps to notify patients and prescribing

physicians that, if the physician wants a patient to receive

insurance coverage for the prescribed medication, the physician

must complete a form.   Additionally, Walgreens's concern that

recognizing a duty here will expose pharmacies to liability

every time payment is denied by a health insurer is unfounded.

Our decision only covers situations where insurance coverage is

denied specifically because a prior authorization form is

required.   Pharmacies can protect themselves from liability in

these instances simply by notifying the patient and prescribing

physician by any reasonable means, and making a contemporaneous

record of having done so.

     We decline to hold, as Correa requests, that pharmacies are

obliged to follow up with the prescribing physician until they

are certain that the physician received and will act upon the

request for prior authorization.   A patient may decide at any



     custodian is required by law to take custody or voluntarily
     takes custody of the other; and (b) the custodian has a
     superior ability to protect the other."

Id. at § 40(b).   This provision is also inapplicable.
                                                                    26


point to take the prescription to a different pharmacy, so the

first pharmacy cannot assume that silence on the part of the

prescribing physician means that the physician has not received

the notice.   To require the pharmacist to make repeated

inquiries could also run afoul of the court's holding in Cottam,

436 Mass. at 321-322; a physician may decline to provide the

prior authorization form for numerous reasons not known to the

pharmacy.

     In sum, Walgreens owed a legal duty of care to take

reasonable steps to notify both Rivera and her prescribing

physician of the need for prior authorization each time Rivera

tried to fill her prescription, but its duty extends no

further. 13

     c.   Accrual of prejudgment interest.   General Laws c. 229,

§ 11, provides that "[i]n any civil action in which a verdict is

given or a finding made for pecuniary damages for the death,

with or without conscious suffering, of any person, whether or

not such person was in the employment of the defendant against


     13Correa argues, in the alternative, that Walgreens
voluntarily assumed a duty to notify Schoeck by assuring Rivera
and her family that Walgreens's pharmacists would contact
him. Voluntary assumption of a duty is a fact-specific inquiry,
based on "the totality of the pharmacy's communications with the
patient and the patient's reasonable understanding, based on
those communications, of what the pharmacy has undertaken to
provide." Cottam, 436 Mass. at 326. In light of our holding,
we do not consider Correa's alternative argument.
                                                                   27


whom the verdict is rendered or finding made, there shall be

added by the clerk of the court to the amount of the damages

interest thereon."   This court previously has instructed that

G. L. c. 229, § 11, must guide decisions with respect to

prejudgment interest for wrongful death suits.   Turcotte

v. DeWitt, 333 Mass. 389, 392 (1955).   As Correa points out, the

statutory language indicates that accrual of interest is

mandatory, rather than discretionary.   See G. L. c. 229, § 11

(interest "shall be added"); Retirement Bd. of Stoneham

v. Contributory Retirement Appeal Bd., 476 Mass. 130, 138

(2016), quoting Hashimi v. Kalil, 388 Mass. 607, 609 (1983)

("The word 'shall' is ordinarily interpreted as having a

mandatory or imperative obligation").

     Notwithstanding this language, Schoeck and NENA point to

cases from other contexts in which this court has explained that

the decision to award or limit prejudgment interest requires

"balancing equities."    USM Corp. v. Marson Festener Corp., 392

Mass. 334, 350 (1984).   Such balancing, however, was intended to

prevent a plaintiff from obtaining an undeserved windfall.    See,

e.g., St. Paul Surplus Lines Ins. Co. v. Feingold & Feingold

Ins. Agency, Inc., 427 Mass. 372, 377 (1998) (prejudgment

interest should not run from commencement of action because "the

fact that no loss was incurred until after an action was

commenced should be recognized, as a matter of fairness, in
                                                                   28


order to avoid giving a party an undeserved windfall"); USM

Corp., supra at 348 (prejudgment interest not appropriate in

trade secret misappropriation action because, unlike typical

tort action, "monetary award based on the defendants' profits is

not designed to make the plaintiff whole and because . . . the

defendants' monetary gain accrued after the commencement of

[the] action").   Similarly, an award of prejudgment interest has

been denied where the plaintiff unjustifiably delayed the

progression of a case.   See Peters v. Wallach, 366 Mass. 622,

629 (1975) (delay caused by plaintiffs' repudiation of

settlement agreement they had previously accepted); Currier

v. Malden Redev. Auth., 16 Mass. App. Ct. 906, 907 (1983) ("a

judge has the discretion to adjust an award of interest where a

litigant has been responsible for an unnecessary delay"); Whaler

Motor Inn, Inc. v. Freedman, 9 Mass. App. Ct. 884, 885 (1980)

(delay resulted from "plaintiff's pursuit of [an] untenable

position").

     Such concerns are not present here.   While Schoeck and NENA

are not responsible for the delay in this case, Correa's desire

to pursue an immediate appeal from the judgment in favor of

Walgreens did not afford her a tactical advantage.   Indeed, the

motion judge decided to stay the claims against Schoeck and NENA

in the interests of "judicial economy," realizing that, if

Schoeck and NENA proceeded to trial, and Correa then succeeded
                                                                    29


in her appeal concerning the claims against Walgreens, the

matter would be remanded for trial against Walgreens, resulting

in considerable duplication of effort.    If Correa were to

prevail against Schoeck and NENA, interest accrued during the

appeal simply would compensate her for the loss of the use of

the money awarded during the course of the proceedings.

See Conway v. Electro Switch Corp., 402 Mass. 385, 390 (1988)

(prejudgment interest intended to "compensate a damaged party

for the loss of use or the unlawful detention of money"

[emphasis added]).   Accordingly, it was error to stay the

accrual of prejudgment interest in this case.

     3.    Conclusion.   The allowance of Walgreens's motion for

summary judgment is reversed, and the stay of the accrual of

prejudgment interest is vacated.    The matter is remanded to the

Superior Court for further proceedings consistent with this

opinion.

                                      So ordered.
     LOWY, J. (dissenting).   A systemic flaw contributed to the

tragic death of a young woman who was deprived of vital

medication because her pharmacy was unable to obtain a prior

authorization form from her prescribing physician as required by

her insurer.    In an understandable attempt to address this flaw,

the court now imposes a nebulous duty on pharmacies to inform

physicians that a prior authorization is required for certain

medications in order to secure insurance coverage.   This duty

requires pharmacies to take "reasonable steps" to notify both

the patient and the prescribing physician that a prior

authorization is required each time the patient tries to fill

the prescription, with no real guidance concerning what

constitutes reasonable steps.

     I agree with the court that pharmacists have a duty to take

reasonable steps to notify patients of the need for prior

authorization every time the patient tries to fill a

prescription.   I disagree, however, with the court's conclusion

that pharmacists have a duty to notify the prescribing physician

of the need for prior authorization every time the patient

attempts to fill a prescription.   Imposing such a duty is

neither implied by contract, mandated by statute, nor -- until

today -- recognized by common law.

     The court's desire to improve patient safety and avoid the

tragic results that occurred in this case is beyond question,
                                                                    2


but I am troubled that imposing a tepid duty on pharmacies that

have no ability to control the system while simultaneously

dissipating the personal responsibility of health insurers,

physicians, and patients within the existing system will have an

adverse effect on patient safety.

      The pharmacy is not the entity that requires the prior

authorization, nor does it have the legal authority to provide

it.   The pharmacy is a conduit because the pharmacy submits

insurance claims for coverage.   Nonetheless, the court's

decision saddles pharmacies with the legal duty to inform

physicians' offices that prior authorization is required.    The

rule announced today dissipates the legal accountability and

personal responsibility of health insurers and physicians and

gives patients a false sense of security, all while imposing a

legal duty on an entity that may not actually be in the best

position to help avoid the harms that occurred in this case. 1

      It appears that many pharmacies have attempted to fill this

disconnect between the providers prescribing the medications and



      1The prescribing physician also has a duty to provide the
prior authorization when doing so is required by the standard of
care. The duty imposed by the court may, in certain
circumstances, blur that duty. Indeed, Carmen Correa argues
that in addition to the negligence of Walgreen Eastern Co.,
Inc., and Dr. Andreas P. Schoeck, their combined negligence
resulted in the prior authorization never being submitted to
MassHealth.
                                                                     3


the insurance companies requiring the prior authorizations.     I

expect that this is good business practice and the right thing

to do.   The court's opinion, however, runs contrary to well-

established principles of tort law because it imposes a legal

duty on a party without the control or means to avoid the risk

and resulting harm.   A system that allows health insurers to

detach themselves from both the patient and the provider, while

fostering a false sense of security among patients, cannot be

salvaged by requiring pharmacists to send a single facsimile

message or leave a lone telephone message in potentially

unmonitored voicemail at a health care provider's office.

     Is leaving a voicemail message in the physician's answering

service enough?   How many telephone calls are enough?   Will this

duty evolve to require the pharmacy to confirm receipt of the

message?   Will the pharmacist also have to inform the health

insurer that the physician has yet to provide the prior

authorization form?   What must the pharmacist say to the patient

who is without medication and awaiting the prior authorization?

Will patients be lulled into a false sense of security and

potentially dissuaded from following up with their physician to

demand that the prior authorization be completed?   Will every

pharmacy in the Commonwealth, regardless of the resources

available to them, need to create a document retention system to

memorialize each attempt to notify a health care provider and to
                                                                  4


memorialize the nature of the health care provider's office's

response?   Will independent pharmacies be able to create such

systems and remain in business?   Will those pharmacies that

implement the most thorough process and train their pharmacists

to be assiduous and conscientious in seeking to obtain prior

authorization expose themselves to enhanced liability when they

fail to obtain prior authorization?   Will the court's opinion

enable physicians and health insurers to delegate a portion of

their responsibilities to pharmacies to the detriment of

patients?   I respectfully dissent.
