Pharmacy Times

PHARMACY LAW: Liability for Failure to Dispense When the Patient Cannot Pay and Dies?

Author: Joseph L. Fink III, BSPharm, JD

Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.


Joseph L. Fink, III

Issue of the Case
What is the liability exposure of the pharmacy when prescriptions are not filled due to inability to pay, and the patient subsequently dies?

Facts of the Case
A hospitalized patient in a southern state was discharged during the early morning hours with several prescriptions that were presented at a local pharmacy. A computer glitch there apparently prevented the Medicaid claim from being processed. The patient and her family were informed that the medication could be dispensed if they were to personally pay for the prescriptions, but they were unable to do so. The patient passed away shortly after that.

The surviving family members filed a wrongful death lawsuit against the pharmacy and the pharmacist on duty during the episode, alleging that the negligence of the pharmacist representing the pharmacy in failing to dispense the medication caused the woman’s death. They presented 2 affidavits supporting their claim: one from a pharmacist stating that the standard of due care was such that the medication should have been dispensed, and a second from a physician expressing the view that the failure to provide the medication was the proximate cause of the woman’s death.

The trial court took up the wrongful death action and reviewed the affidavits. The judge had received a pretrial motion by the defendant pharmacy for summary judgment, meaning that the pharmacy felt the claim was not adequately supported by the evidence and that the case should be dismissed without going to trial. A motion for summary judgment asks the judge to terminate the proceeding at that point because of lack of an adequate claim for compensation. Some view it as the legal equivalent of saying “so what”—even if we accept everything they allege as being so, it still is not sufficient to support a claim. The trial court granted the motion, ending the lawsuit at that level, and the surviving family members, feeling that decision was erroneous, appealed to the state court of appeals.

The Court’s Ruling
The decision of the trial court dismissing the lawsuit was affirmed by the appellate court.

The Court’s Reasoning
The 2 affidavits each included a statement that the professionals filing them were familiar with the standard of care applicable to such situations in the state and that the legal duty had been breached. Neither affidavit expressly stated what standard of care the deceased patient was owed under the circumstances, however. The case materials as presented by the plaintiff did not identify any state statute or court decision that created a legal duty on the part of the defendant or what the applicable standard of care would be in such circumstances if the defendant had indeed owed such a legal duty. It may be noteworthy that the court, in its opinion, observed that both experts were from out of state.

As a result, the court of appeals, concluding that there was an absence of any issue of material fact regarding the legal duty or standard of care, ruled that the lower court’s dismissal of the lawsuit was, in fact, appropriate. A word about wrongful death actions is in order, because these are claims that pharmacists may potentially encounter when a patient dies. In the system of Common Law that evolved in England over the centuries and was adopted in the United States to serve as the basis for our judicial system, one could not maintain a lawsuit for the death of a human being. That is, the claim could not be maintained in the name of the newly deceased individual because he or she was dead; only a live human being could bring an action. This created the conundrum that activities leading to a person being injured could be the basis for a civil suit, but those more extreme measures that caused a death could not be.

That irony was addressed by the various state legislatures when they enacted wrongful death statutes. These authorize a civil law claim for damages suffered by the survivors. Note that the lawsuit here is maintained by the surviving relatives, not in the name of the deceased individual, thereby getting around the notion that one must be alive to maintain a lawsuit. The claim for compensation is based on the loss of companionship and enjoyment due to the deceased individual being removed from the life of the survivors. ■