By Ronald L. Scott

"Electronic prescribing is introducing significant changes in how drugs are used and monitored." See Edward P. Armstrong, Electronic Prescribing and Monitoring are Needed to Improve Drug Use, Arch Intern Med, Vol 160, p. 2713 (Oct. 9, 2000). E-prescribing can help reduce prescribing errors, dispensing errors, and administration errors. See id. In Vasquez v. Albertson’s, a Texas district court jury found a physician negligent for writing an illegible prescription. The error could have been prevented if the prescription had been typed, or transmitted electronically from the physician to the pharmacy. See Move Prescriptions Online Now (posted 12/10/99) available at Internet/991210Move.html. See also Cybermedicine and Virtual Pharmacies, 103 W. Va. Law Rev. 407 (2001).

It is already possible for a physician to directly transfer a prescription to a pharmacy using a Palm handheld device together with a wireless Internet connection. One commercial service allows physicians to send prescriptions to pharmacies using a secure wireless connection to the Internet. ePhysician’s ePad operates on a Wide Area Network, allowing physicians to utilize their Palm handhelds from any location. Stuart Weisman, M.D., CEO and founder of ePhysician believes that "[h]ealthcare professionals nationwide are embracing ePhysician’s technology because it reduces medical errors and creates tremendous efficiencies for the practicing physician." See http://www.ePhysician.com/news/index.asp?id=080100. The company has sent more than 100,000 electronic prescriptions from a Palm handheld to pharmacies in 48 states through its ePad service. The company has partnered with Kaiser Permanente, and physicians from the Mid-Atlantic Permanente Medical Group will be using ePhysician’s wireless technology to treat up to 40,000 patients. ePhysician claims to be the first e-health company to provide physicians with point-of-care tools using a secure wireless connection to the Internet through a handheld device. Using Palm handheld devices, physicians can prescribe medication, schedule patients, and view allergy, drug coverage and critical patient information. Physicians may also be able to order and receive lab results, capture patient charges and diagnoses and dictate notes and reports. Physicians can store a copy of the Physicians Desk Reference pharmaceutical information on their Palm to allow them to check for drug interactions, or a third party service such as pharmacy benefit manager can review the information before it is transmitted to the pharmacy.

So-called "quill pen" laws could present barriers to implementation of e-prescribing in some states. For example, Florida law requires that a pharmacist who receives a prescription for a "brand name" drug must substitute a less expensive, generically equivalent drug product "unless the prescriber writes the words ‘MEDICALLY NECESSARY,’ in her or his own handwriting, on the face of a written prescription or unless, in the case of an oral prescription, the prescriber expressly indicates to the pharmacist that the brand name drug prescribed is medically necessary." See Fla. Stat. Ann. § 465.025 (2). These type of statutes could limit e-prescribing, because the statutory phrase "in her or his own handwriting" presents the question of whether a digital signature would comport with the statute. Presumably the intent of the statute is to promote less expensive generic drugs over their brand name counterparts by requiring the physician to make the extra effort when writing the prescription. It does not appear that the handwriting requirement is an attempt to authenticate the prescriber’s identity or status, the clear purpose of digital signatures.

In some cases, regulations requiring that written prescriptions for controlled substances be manually "signed" could thwart electronic transmission of prescriptions. Kansas requires that written prescriptions for controlled substances must be dated and manually signed on the day issued. See Kan. Admin. Regs. § 68-20-18 (c)(2). The regulation provides that "[a] practitioner shall manually sign a prescription in the same manner as he would sign a check or legal document." In this instance, sending a digital signature should suffice, since the purpose of the regulation seems oriented towards providing adequate security and authentication for controlled substances. In any event, these examples expose the risk inherent in writing legislation that is not technologically neutral.

New York and a number of other states also regulate the electronic transmittal of prescriptions. New York allows a pharmacist to accept an electronically transmitted prescription from a prescriber subject to several requirements. Requirements include: (1) the prescription must contain the signature or electronic equivalent of the prescriber’s signature; (2) electronically transmitted prescriptions, other than facsimile transmissions, must be electronically encrypted to prevent unauthorized access, alteration or use; and (3) the pharmacy must maintain a hard copy of prescription for five years. See N.Y. Comp. Codes R. & Regs. tit 8 § 63.6 (7).

Currently, "providers face a bewildering array of options, and they often have little information about the sponsorship, accuracy, performance, or biases of the [e-prescribing] systems being offered." An expert advisory panel at RAND is currently developing standards for electronic prescribing systems. The standards will address privacy and security of patient information; disclosure of the criteria used to label drugs "preferred;" disclosure of funding sources for products; data on which drug interactions or drug safety are based; and user interface design. See E-Prescribe Expert Advisory Panel To Develop Standards for Electronic Prescribing at http://www.rand.org/hot/press.02/eprescribe.html.