Indianapolis doctor wins defamation judgment against CVS

An Indianapolis physician whose patients were told at multiple CVS pharmacies that their prescriptions couldn’t be filled because the doctor had been arrested or was suspected of running a pill mill won a defamation judgment against the drugstore chain.

Dr. Anthony Mimms was granted summary judgment Tuesday on his defamation claim against CVS. A doctor since 2004, he had practiced with Rehabilitation Associates of Indiana until November 2013, when he left to form his own pain management practice.

Soon afterward, his patients were refused prescriptions in documented incidents at multiple Indianapolis CVS locations as well as at stores in Greenfield, McCordsville and Rushville. Pharmacists and technicians at these stores variously told Mimms’ patients that he had been arrested, that he was under DEA investigation, that his license had been revoked, or other reasons why they were not filling prescriptions he had written.

Judge Tanya Walton Pratt in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, granted Mimms’ motion for summary judgment on his defamation claim and denied CVS’ cross-motion for judgment in its favor.

“The Court finds that, when viewed in context and given its plain meaning, the statements: ‘Dr. Mimms’ license has been suspended or revoked;’ ‘Dr. Mimms has been arrested, and if he hasn’t been he soon would be, therefore, [] find a new doctor;’ ‘CVS no longer fills prescriptions for Dr. Mimms because Dr. Mimms has been to jail, and is a bad doctor;’ and ‘Dr. Mimms is under DEA investigation’ amount to communications with defamatory imputation,” Pratt wrote. “ … (T)he Court determines the above statements are defamation per se.”

Pratt wrote CVS had failed to present sufficient evidence that the Drug Enforcement Agency and the Indiana Attorney General’s Office were investigating Mimms, rejecting its affirmative defense of truth. CVS also acted with actual malice when an employee stated Mimms’ license had been suspended or revoked, which was untrue and unverifiable. CVS’s argument of qualified privilege for its employees also failed.

Mimms also provided evidence that the statements made by CVS employees violated company protocol that expressly states, “Under no circumstances are you to make any disparaging comments about the customer’s prescriber.” Examples of what employees are instructed not to say expressly include: a doctor is under investigation, is operating a pill mill, is going to lose a license, is or should go to jail or be arrested.

Left to be decided at trial are whether other statements made by CVS employees are defamatory and the amount of Mimms’ damages.

The case is Anthony Mimms, M.D., et al. v. CVS Pharmacy, Inc., 1:15-cv-970.