Montana Doctors File Lawsuit Challenging State’s Ban on Doctors Dispensing Medications to Their Patients

Matt Powers
Matt Powers · June 12, 2020

ARLINGTON, Va.—In almost every state, when you get sick and visit your doctor, you can obtain prescribed medications right there in the doctor’s office—a practice known as “doctor dispensing.” But not in Montana, which bans most doctors from dispensing medications. Dr. Carol Bridges, Dr. Cara Harrop and Dr. Todd Bergland want to use doctor dispensing to improve care and save patients money. Today, they partnered with the Institute for Justice (IJ) to file a lawsuit in Missoula County District Court challenging Montana’s ban on doctor dispensing.

This ban isn’t about patient safety; it’s about protecting the profits of pharmacies. Montana doctors are banned from dispensing medications unless they meet one of several, often vague exceptions. Relevant exceptions include dispensing samples, dispensing “occasionally,” dispensing in an “emergency,” or dispensing when the doctor works over 10 miles from the nearest pharmacy. The result: pharmacies can dispense an unlimited supply of medications whenever they like, while doctors—unless they work far enough away from pharmacies—are largely banned from offering patients the medications they need.

“As a family doctor, one of my first priorities is ensuring my patients get the treatment they need to start feeling better,” said Dr. Bridges. “Dispensing medications in my office, at cost, is one simple way to do that. This law just makes it harder for me to do my job.”

Montana’s ban on doctor dispensing is the exception nationally, not the rule. In 44 states and the District of Columbia, doctor dispensing is legal and most doctors report doing it. Because they work in Montana, however, Dr. Bridges, Dr. Harrop and Dr. Bergland could be fined and even lose their medical licenses for attempting to dispense medications to their patients, simply because they work too close to pharmacies.

Research shows that doctors and pharmacies are equally safe when dispensing medication and that making routine medications more accessible can increase patients’ adherence to their prescribed treatment.

“Our clients just want to dispense routine medications to their patients at cost,” said IJ Attorney Joshua Windham. “This is a safe and effective way to expand access to care. But Montana’s protectionist law stands in their way.”

As other states have repealed similar bans over the past few decades, Montana has kept its ban in place. But there is no reason to think that doctors in Montana are any less qualified than their peers in 45 other jurisdictions to dispense medications. Nor is there any reason to believe that Montana doctors who work near pharmacies are less qualified than their rural peers who fall within the state’s 10-mile exception to the ban.

“As a family physician, most of my patients have relatively straightforward problems like strep throat, allergies, or pink eye,” said Dr. Bergland. “If I’m qualified to diagnose these illnesses and prescribe the right medications—and I am—I’m certainly qualified to hand them to my patients as they walk out the door.”

Montana’s ban is not the only example of one group using the power of government to keep another group from competing in the medical field. In 2019, IJ challenged a similar doctor-dispensing ban in Texas, where doctors are prohibited from dispensing unless they work in certain “rural” areas more than 15 miles from a pharmacy. IJ is also challenging certificate of need (CON) laws for healthcare services in Iowa, North Carolina, Kentucky and Nebraska.

These challenges are made possible by IJ’s other landmark victories. In 2015, IJ struck a blow against unreasonable economic regulations in Patel v. Texas Department of Licensing and Regulation when the Texas Supreme Court struck down the state’s licensing requirements for eyebrow threading. In that case, the court held that economic regulations must further a legitimate public end in a non-oppressive manner. Montana’s ban on doctor dispensing fails that test—it bans a useful service, which hurts patients and doctors, solely to protect pharmacies from economic competition.

“The only reason our clients can’t dispense medications to their patients is that pharmacist groups have lobbied lawmakers to protect their bottom line,” said IJ Attorney Keith Neely. “The Montana Constitution forbids laws that do nothing more than protect the financial interests of established businesses.”

The case was filed in the Missoula County District Court against the Montana Board of Medical Examiners, the Montana Attorney General, and the State of Montana, the parties responsible for enforcing the law.