Prescription for Negligence?

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Like all professionals, pharmacists owe a duty of care to their clients.  The level of care and the specific duty owed, however, can vary depending on the jurisdiction.  Historically, most states assign the duty to warn about the potential dangers, side effects or general usage of a drug to the physician or drug manufacture.  Since pharmacists are not prescribing the medication, their potential liability is generally limited to scenarios involving the negligent filling of a prescription.  However, a recent trend in the field has been expanding the potential liability of the pharmacists by holding them liable for failing to warn about a drug in certain situations or failing to consult the prescribing physician.  A decision out of the state of Florida highlights this growing trend and creates a cause for concern in the profession.

Oleckna v. Daytona Discount Pharmacy stemmed from a fatal drug overdose.  Plaintiff alleged that decedent was prescribed anti-anxiety and painkiller medication from his doctor, who repeatedly re-prescribed the drugs before the decedent should have finished the preceding prescription.   Plaintiff brought suit against the pharmacy alleging, among other things, that the pharmacy had a duty to not dispense or fill prescriptions that were unreasonable on their face and to warn in light of the circumstances.  The pharmacy filed a motion to dismiss on the grounds that it only owed a duty to properly fill the valid and lawful prescriptions, which it did in this case.  The trial court granted the pharmacy’s motion.

On appeal, the court addressed the issue of whether the pharmacy owed a legal duty to the decedent in order to support a negligence claim.  The court analyzed various prior state court decisions regarding the duty of the pharmacy and found that a pharmacist’s duty of due care in filling prescriptions cannot be satisfied by “‘robotic compliance’ with the instructions of the prescribing physician.”  Rather, a pharmacist’s duty extends beyond just properly filling the prescription.

In this case, the court found that based upon the allegation that the pharmacy repeatedly filled prescriptions so close together without question, it should have been on notice that decedent was receiving too much medication within too short a period.   The court noted that of significance in its decision was that the prescriptions at issue were alleged to be unreasonable on their face “because they were written in a quantity, frequency, dosage, or combination that a reasonable pharmacist would either have checked with the prescribing doctor or warned the patient.”  Therefore, it found that the trial court erred in dismissing the negligence claims against the Pharmacy.

The court never reached the issue of whether the pharmacy was actually negligent in this case, but the holding certainly leaves open the possibility that a pharmacy could be held liable for failing to identify prescriptions that are unreasonable on their face.  Also potentially troublesome is the court’s opinion that a pharmacist’s duty of care extends beyond properly filling a valid prescription.  Just how far this duty will be stretched remains to be seen.  However, in the meantime, it’s safe to say that when it doubt check it out.  Pharmacists should inquire with the physician and perhaps in some cases even the patient when something seems out of line.