Continuing Education: Growing Liability for Pharmacists: The Duty to Warn

By Blackwell, Steven; Szeinbach, Sheryl; Smith, Mickey; Garner, Dewey | Drug Topics, February 19, 1996 | Go to article overview

Continuing Education: Growing Liability for Pharmacists: The Duty to Warn


Blackwell, Steven; Szeinbach, Sheryl; Smith, Mickey; Garner, Dewey, Drug Topics


Introduction

There is a lingering question in community pharmacy concerning whether a pharmacist should intervene in the patient-physician relationship and warn the patient of a known drug interaction. The typical scenario occurs when the attending pharmacist sees that a potential contraindication is present and notifies the prescribing practitioner, who then decides if the contraindication warrants a change in therapy.

The critical uncertainty arises when a prescribing practitioner determines that the potential contraindication does not warrant concern, even though the attending pharmacist disagrees with that decision. Subsequently, the attending pharmacist typically makes a notation--either on the prescription or in the patient's recordto document his/her efforts to correct the potential contraindication. However, the attending pharmacist faces the daunting uncertainty of whether notification to the prescribing practitioner and the receipt of his/her approval to dispense the contraindicated medication is sufficient to remove the attending pharmacist from liability exposure.

In this lesson, we will discuss how a legal duty for pharmacists to intervene in the patient-physician relationship has been established and why today's pharmacist may face liability exposure for failing to warn the patient of a known drug interaction, despite the prescribing practitioner's decision that the contraindication does not warrant a change in therapy.

Discussion: Negligence

The legal term negligence applies in reference to the duty one individual owes to another.

Four elements (see Figure 1) make up the definition of negligence:

1. The actor (i.e., the defendant) had a duty to conform to a specific standard of conduct (called establishing a duty). 2. The actor breached the duty. 3. The breach of the duty was the actual and proximate cause of the plaintiff's injury.

4. Injury to the plaintiff's person or property resulted. A plaintiff must prove each of these four elements before he or she can recover an award from the actor.

Element 1: Establishing a duty

The first element that a plaintiff must prove in order to win his or her negligence case is the actor's duty to the plaintiff to conform to a specific standard of conduct. This element can be further subdivided into two components: * What is the standard of care to which the actor must conform? * To whom is this duty owed? (See Figure 2.)

The first component of establishing a duty--determining the standard of care to which an actor must conform-is typically proven in one of the following ways: * The reasonable person standard; or * A statutory standard (i.e., violation of a statute). (See Figure 2.)

The reasonable person standard. The reasonable person standard is an objective standard. This means that the actor must act as a reasonable and prudent person would act under the same or similar circumstances. Inherent in this definition is the fact that any pharmacist is deemed to possess the same skill or knowledge that other members of his/her profession in good standing possess. A presiding court in a negligence action pending against a defendant pharmacist would not take into account, for example, that the defendant pharmacist did not attend the best pharmacy school or did not possess the average knowledge that another member of his/her profession possessed; that would constitute a subjective standard. Hence, if the reasonable and prudent pharmacist were to have more skills and greater knowledge and would have acted differently from this defendant pharmacist, then it is that "reasonable and prudent" standard to which the presiding court would hold the defendant pharmacist.

When referring to the standard to which a professional is held, most courts interpret the reasonable person standard as referring to other members of the particular profession practicing in the same or similar community in which the defendant pharmacist practices. …

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