Expanding Liability

Article excerpt

Questions about the legal duties of pharmacies and pharmacists in malpractice suits continue to proliferate. An opinion, issued by a federal district court judge in Heredia v. Johnson, on Aug. 10, 1993, has the potential of expanding pharmacy liability to new boundaries.

FACTS: Mr. Heredia, the plaintiff, was diagnosed with severe otitis media and given three prescriptions by his physician to treat the condition. The medications were all dispensed by a pharmacy in Elko, Nev.

One of the Rxs was for Pediotic Suspension (Burroughs Wellcome). The plaintiff claims that he was not told, either by the dispensing pharmacist or through warning labels, that he should quit using the eardrops and seek additional medical treatment if symptoms of tympanic membrane rupture appeared and that he now needlessly suffers this and other severe and permanent injuries.

LAWSUIT): The plaintiff sued the physician and the manufacturer along with the pharmacy dispensing the eardrops. He charged the pharmacy with liability under two distinct legal theories: strict liability and negligence. Seeking to avoid a trial on the allegations, the pharmacy asked the court to dismiss the claims on summary judgment. In somewhat of a surprising opinion, given the generally accepted law on this subject, the judge ruled against the pharmacy, holding that it could be found liable under either theory. The case will now proceed to trial unless settled beforehand.

NEGLIGENCE STANDARD: As has often been reported in this column, a number of courts have addressed the topic of a pharmacist's "duty to warn" about hazards associated with Rx drug use. The results are, at best, mixed. Many state courts find that an R.Ph.'s only legal duty is to dispense prescriptions as written; others hold pharmacists to a higher level of responsibility to protect patients from harm by requiring warnings when it is reasonable to do so. In the case under consideration, the federal court, applying Nevada state law, chose to follow the latter position, although there is little or no state law precedent on the point. On the claim that the pharmacy negligently failed to label the eardrops with necessary warnings, the court noted some of the traditional positions that have been used to shield pharmacists from liability, including the rubrics that a pharmacist has no duty to second-guess the prescribing physician, a pharmacist has no duty to warn greater than that of a physician, and an R.Ph. is not the insurer of the safety of a drug. In fact, the judge observed that "a generalized duty to warn has been held inappropriate in some jurisdictions. …


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