The last thing a sick patient wants to do after a doctor’s appointment is stand in line at a pharmacy for basic treatment like anti-nausea medication—and, in most of the country, they don’t have to. The vast majority of states allow patients to purchase medications directly from their prescribing doctor. This practice, known as “doctor dispensing,” is a safe and effective way to increase access to treatment, and is offered by a majority of doctors nationwide.
But for decades, doctor dispensing was effectively banned in Montana. Doctors were forbidden from dispensing unless they practiced more than 10 miles from a pharmacy. Otherwise, doctors could dispense “occasionally,” “in an emergency,” free samples, or when a pharmacy did not have the prescribed medication. These narrow (and often vague) exceptions made it nearly impossible for doctors to offer this beneficial service for all of their patients.
Montana’s ban did not sit well with Dr. Carol Bridges, Dr. Todd Bergland or Dr. Cara Harrop, who wanted to dispense routine medications to their own patients. All three are family doctors who regularly prescribe medications for common issues like high cholesterol, stomach bugs and seasonal allergies. And all three felt that their patients would benefit if they could offer direct access to the medications they prescribed, right when they prescribed them.
Banning Dr. Bridges, Dr. Bergland, and Dr. Harrop from dispensing had nothing to do with protecting patients. All three are more than qualified to hand patients the drugs they prescribe, and research confirms that doctors are just as safe as pharmacies when dispensing. In reality, the only ones who actually benefitted from Montana’s ban were the pharmacies that enjoyed exclusive authority to dispense.
That is unconstitutional. The Montana Constitution forbids government from imposing unreasonable and protectionist restrictions on the right to pursue a chosen business, and these protections are no less applicable to licensed doctors than anyone else. So in 2020, Dr. Bridges, Dr. Bergland and Dr. Harrop teamed up with the Institute for Justice to file a lawsuit challenging Montana’s unconstitutional ban on doctor dispensing.
Almost immediately, lawmakers took notice and proposed a bill to remove the dispensing ban. The bill received near-unanimous support after the Montana Pharmacy Association publicly admitted that its decades-long efforts to defend the ban were motivated by economic protectionism. And in May 2021, the bill was signed into law. As a result, doctors throughout Montana are now free to play a more direct role in helping their patients get the medications they need.
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Doctor Dispensing Is Mainstream
Doctor dispensing is as old as medicine itself and it has been the norm in America since before the Revolution. As one Boston doctor observed in 1722, “all our Practitioners dispense their own medicines.”[i] Still today, a majority of American doctors report dispensing medication in their daily practices.[ii]
It’s easy to see why. Up to 30% of all prescriptions in this country go unfilled due to factors like cost and inconvenience, resulting in future complications for patients and billions of dollars annually in avoidable medical expenses for the broader health care system. Dispensing offers doctors a way to help alleviate these problems by providing patients with immediate access to the medications they need—often at a fraction of the price charged by nearby pharmacies.
Better yet, there is no evidence that doctor dispensing trades convenience for patient health. Doctors are, statistically, just as safe as pharmacies when dispensing.[iii] This makes sense, since it is doctors who are charged with assessing patients’ needs and prescribing the right medications, and it is doctors who are held responsible if something goes wrong.
Simply put, doctor dispensing is a no-brainer medically and economically. It’s no wonder that doctors in 44 states and the District of Columbia are legally permitted to provide this beneficial service.
Montana Bans Doctor Dispensing to Protect Local Pharmacies from Competition
Montana is an outlier. There, unlike in the vast majority of states, “it is unlawful for a medical practitioner to engage, directly or indirectly, in the dispensing of drugs.”[iv]
There are a few narrow exceptions. Primarily, doctors who work over 10 miles from any pharmacy can dispense the medications they deem appropriate for the price they deem fair, consistent with their professional and ethical duties.[v] Doctors can also dispense if nearby pharmacies do not have the prescribed medication, they can dispense free samples given to them by pharmaceutical manufacturers and they can dispense “occasionally, but not as a usual course of doing business,” or “in an emergency”—though these last two are not defined, leaving doctors to guess about whether they are violating the law.[vi]
This ban, while clothed as a health and safety measure, has nothing to do with protecting the public. Montana doctors are every bit as qualified as their peers in 44 other states and the District of Columbia to dispense medication to their patients. And doctors who happen to work near pharmacies are just as qualified as their rural Montana peers to dispense medications safely and ethically.
If anything, this ban harms public health and safety. Preventing doctors from offering patients convenient access to medications they need makes it more difficult for patients to stick to their prescribed course of care and imposes unnecessary costs on the state’s health care system.
Of course, it’s not doctors or patients who want to keep Montana’s dispensing ban on the books. Montana pharmacy groups—whose members enjoy a 10-mile buffer from competition under the law—have opposed and successfully defeated every recent legislative effort to reform Montana’s ban. Now, three doctors are fighting back.
Dr. Carol Bridges, Dr. Todd Bergland, and Dr. Cara Harrop are Montana physicians who want to dispense safe, affordable medication to their patients. Specifically, they want to dispense non-controlled medications at cost.
Dr. Bridges is a family doctor with over 20 years of experience. She runs Cost Care, a primary and emergency care practice in Missoula. Dr. Bergland is a family doctor with over 15 years of experience, seven of which came while on active military duty, including serving as a tank battalion surgeon during Operation Iraqi Freedom. He recently founded Fountainhead Family Med, a primary care practice in Whitefish. Dr. Harrop is a family doctor with over 20 years of experience. She runs Pure Health DPC, a primary care practice in Polson.
As family doctors, each offers a wide range of services—everything from basic checkups to treatment for chronic conditions to acute care. All three regularly prescribe medications for common issues like high cholesterol, stomach bugs and seasonal allergies. And all feel their patients would benefit from more convenient and affordable access to those medications if they were allowed to dispense the treatment they prescribe, at cost, right when they prescribe it.
In short, Dr. Bridges, Dr. Bergland and Dr. Harrop just want to put their patients first. But Montana’s ban on doctor dispensing puts pharmacies first.
The Legal Challenge
Montana’s anti-competitive ban is unconstitutional in three ways.
First, the law violates Article II, Section 3 of the Montana Constitution, which protects the right to pursue a chosen business free from irrational and protectionist government interference. Montana’s ban is irrational because Dr. Bridges, Dr. Bergland and Dr. Harrop—just like their peers in 44 other states, the District of Columbia and in rural Montana—are qualified to safely dispense. Together, they have almost 60 years of experience treating illnesses and saving lives. There is no reason they cannot be trusted to hand patients the medications they have prescribed as patients walk out the door. The ban is also protectionist because it serves, not to protect patients, but solely to protect pharmacies from competition.
Second, the law violates Article II, Section 4 of the Montana Constitution, which forbids the state from drawing unreasonable and protectionist distinctions between similar groups. In short, Dr. Bridges, Dr. Bergland and Dr. Harrop want to provide identical services to those offered by rural peers, but they are forbidden from doing so because they work too close to pharmacies—a factor that, again, has nothing to do with safety and everything to do with protecting pharmacies from competition.
Third, the law violates Article II, Section 17 of the Montana Constitution, which forbids the legislature from enacting vague laws. The dispensing ban purports to allow doctors to dispense “any drug in an emergency” or “occasionally, but not as a usual course of doing business.” But these terms are not defined, leaving doctors to guess about whether they are breaking the law. That is unconstitutional.
To vindicate their economic liberty rights under the Montana Constitution, Dr. Bridges, Dr. Bergland and Dr. Harrop have teamed up with IJ to file a lawsuit challenging the state’s anti-competitive ban on doctor dispensing.
The Litigation Team
IJ Attorneys Joshua Windham and Keith Neely represent Dr. Bridges, Dr. Bergland and Dr. Harrop, with assistance locally from Alex Roots of Planalp, Reida, Roots & Riley.
The Institute for Justice: A History of Protecting Economic Liberty
The Institute for Justice is the national law firm for liberty. This case follows IJ’s 2019 lawsuit challenging Texas’s ban on doctor dispensing and adds to the growing list of cases IJ has filed in recent years to defend the economic liberty rights of medical professionals and their patients, including challenges to Iowa’s, North Carolina’s, Kentucky’s and Nebraska’s certificate of need (CON) laws for healthcare services.
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[i] Glenn Sonnedecker, Kremers and Urdang’s History of Pharmacy 155 (4th ed. 1986).
[ii] Mark Munger et al., National Evaluation of Prescriber Drug Dispensing, 34 Pharmacotherapy 6 (2014).
[iii] Munger et al., supra note 2, at 8.
[iv] Mont. Code Ann. § 37-2-104(1).
[v] Mont. Code Ann. § 37-2-104(2)(c); see id. § 37-2-101(1).
[vi] Mont. Code Ann. § 37-2-104(2).
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