Continuing Education: Recent Legal Cases: A Heads-Up for Pharmacists

Article excerpt

As the 20th century drew to a close, several important and relevant legal cases impacting the profession of pharmacy were litigated. Five such cases decided in 1999 were selected because their respective opinions directly affect every pharmacist, regardless of the pharmacist's practice setting. These cases also illustrate several of the major causes of liability claims against pharmacists. (See table, page 93.) In this study, the discussion of each case will focus upon the defendant pharmacist or pharmacy.

The first case deals with the issue of a pharmacist's negligence. The second examines the question of whether a pharmacist may be held strictly liable for failure to warn of a prescription drug's dangerous propensities. Next, we take a look at whether a public-policy exception exists for an "at-will" employed pharmacist whose job was terminated. The last two cases examine the concept of patient confidentiality in determining the pharmacist's responsibility. After each case, a chart of application principles (see Figures 1 through 4) will present some guidelines to take into practice.

Negligence and the duty of care

The old adage, "count, pour, lick, and stick," was once the negligence standard by which pharmacists were judged. By this axiom, a pharmacist would be liable for negligence only if he incorrectly filled a prescription. However, new case law suggests imposing a higher standard on pharmacists.

In order for a pharmacist to be found negligent, all the following four elements must be proven by the party bringing suit:

Duty owed to the patient

Breach of that duty

Causation

Damages

Three of these elements-breach of a duty owed to the patient, causation, and damages-will be addressed following an analysis of the Horner case, but the main focus of this discussion on negligence will center on the first element, the pharmacist's duty of care.

Horner v. Spalitto 1 S.W.3d 5 19 [Mo.Ct.App. 1999)

In this case, the pharmacist, Peter Spalitto, correctly filled two prescriptions for Franklin Horner six days before Horner died of an apparent drug overdose. The two prescriptions were ethchlorvynol 750 mg #50, one every eight hours, and diazepam 10 mg #50, also one every eight hours.

Before filling the prescriptions, Spalitto consulted Facts and Comparisons, which indicated that the normal dose for ethchlorvynol was 500 mg-750 mg daily at bedtime. Facts and Comparisons also warned that the drug's effects were enhanced when the drug was combined with other central nervous system drugs, such as diazepam. The pharmacist, concerned about the physician's order, contacted the prescribing physician's office. After being told by someone in the physician's office that the prescription was "OK," because Horner "needed to be sedated throughout the day," Spalitto filled the prescriptions. Six days later, Horner was found dead. An autopsy revealed that Horner's death resulted from adverse effects of multiple medications, especially ethchlorvynol, which was near the toxic range.

In describing a pharmacist's duty, the standard used nationally is the degree a reasonably prudent pharmacist (RPP) would use it under similar circumstances. The pharmacist in Horner argued for a traditional definition of "duty" as used by the court in Kampe v. Howard Stark Professional Pharmacy, Inc., 841 S.W.2d 223 (Mo.Ct.App.1992). In that case, the court stated: "By properly filling legal prescriptions that contained no apparent discrepancies on their face, the pharmacy fulfilled its duty to appellant [patient]." The Missouri Circuit Court agreed with Spalitto and applied the Kampe standard for duty.

The Horner family argued the pharmacist had a duty to question a prescription with dosage instructions far exceeding the normal range. Furthermore, they argued a pharmacist has a duty to warn of the potential side effects or adverse reactions to medications when given together. …