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The Dosage Was Too High, No Matter Where the Rx Was Filled

Larry M. Simonsmeier, JD, RPh
Published Online: Sunday, December 1, 2002   [ Request Print ]

Issue of the Case: 
A North Carolina court was asked whether a pharmacist from another part of the state could testify as to the standard of care in the part where the negligence occurred.

Facts of the Case: 
The defendant physician intended to prescribe an 80-mg daily dose of prednisone for the plaintiff?s loss of kidney function. The pharmacist who received the prescription claimed that it indicated that 80 mg be taken 4 times a day, for a daily total of 320 mg.
Concerned about the dose, the pharmacist contended that she called the clinic where the physician was employed. She testified that a female answered the call, placed her on hold, and subsequently returned and confirmed the 320-mg daily dosage. The pharmacist filled the prescription following these instructions. The prescription was filled again 2 weeks later by a different pharmacist at another of the chain?s stores some distance away.

In later testimony, the head of the physician?s clinic maintained that the clinic was never open on a Saturday, when the pharmacist allegedly called. He stated that an answering machine was activated on Friday afternoons.

After receiving the first refill, the patient went to the emergency room and was diagnosed with thrush. He continued taking the 320 mg of prednisone daily for 23 days, until a follow-up visit with the physician revealed the dosage error. The plaintiff contracted a bacterial infection of the lungs and aspergillosis, a fungal infection of the brain, resulting in numerous operations and hospital stays.

The plaintiff suffered permanent kidney failure and will require dialysis for the rest of his life. He sued the physician and the clinic for negligently writing the prescription and the pharmacy chain for negligence in dispensing the drug.

The Court?s Ruling: 
Before going to trial, the physician and the clinic settled with the patient for $10,000. Following the trial against the pharmacy chain, the jury awarded the plaintiff $2.5 million in compensatory damages. The trial court entered a judgment reflecting the jury verdict less the $10,000 already paid by the settling defendants. The appellate court upheld the verdict.

The Court?s Reasoning: 
It was argued for the pharmacy that the physician?s settlement was not made in good faith and was too low, compared with the final judgment. The defendant wanted the physician and his clinic to pay part of the final judgment, but the court rejected this claim. The case against the doctor was a weak one, given the testimony that suggested that the pharmacist did not actually make a call to the clinic. The judge stated that, as he listened to the evidence presented in hearings before the trial, he could tell that the plaintiff?s case against the physician and the clinic ?had been going south all along . . . and there was good reason for the settlement amount.?

Next it was claimed on behalf of the pharmacy that the judge committed error in allowing a pharmacist from another part of the state to testify that the pharmacist who dispensed the drug breached the applicable standard of care.

The court had no tolerance for this argument. It noted that the expert had graduated from the University of North Carolina School of Pharmacy and had practiced in the state for 28 years. The expert stated that ?the basic criteria for standard of care is what?s in the patient?s best interest . . . and it doesn?t matter whether it?s in one state or another.?  As to the dosage, the expert testified that ?it was so excessive as to not be a gray area, and the dispensing pharmacist should have refused to fill a prednisone prescription in that amount, even if confirmed by the prescriber?s office.? 

The Court of Appeals concluded that the trial court correctly admitted this testimony and that it constituted sufficient evidence for the jury to find that the pharmacy breached its standard of care.

Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.

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