Expert Opinions: Sometimes Required and Sometimes Not

AUGUST 01, 2005
Larry M. Simonsmeier, JD, RPh

Issues of the Cases

A "battle of experts" is common in most malpractice actions, with each side presenting testimony from highly trained individuals supporting their cause. Two cases are examined this month that determine whether expert testimony is required for a plaintiff to be successful in a pharmacy malpractice case. These actions demonstrate that the factual pattern and statutes of a jurisdiction play a pivotal role in the final outcome—and that different outcomes can be inconsistent as a result.

Facts of the Cases

In a Texas case, a patient presented a prescription for Magsal [nonarcotic analgesic combination], but the pharmacist mistakenly filled the order with Nizoral [ketoconazole]. The patient even questioned the pharmacist on several occasions as to whether it was the right drug because it did not look the same as what she had received previously. The pharmacist assured her that it was correct and that it looked different because it was a generic substitute.

The patient became weak and nauseous and was hospitalized for 3 days when it was determined that she was suffering from an overdose of Nizoral. When contacted by a consulting physician, the pharmacist admitted that he misfilled the prescription.

The patient filed a lawsuit against the pharmacy but failed to submit an expert report as required by Texas law. The case was dismissed and the plaintiff appealed.

In an action in California, the patient suffered from a number of chronic illnesses and was prescribed numerous medications, including Lasix [furosemide] and Calan [verapamil]. She took the drugs regularly and recognized Lasix as a small white pill and Calan as a large blue capsule.

The plaintiff received a refill for Lasix labeled "furosemide, generic for Lasix" but noticed that the medication looked different in form and appearance. Believing the difference was a result of receiving the generic version, she took the product for 4 days before she became comatose and was hospitalized. Upon her discharge, she went back to the pharmacy and was told she had actually received Calan instead of Lasix.

The patient sued the pharmacy. No expert opinion was presented. A jury returned a judgment in her favor totaling over $300,000. The defendant pharmacy claimed that the plaintiff's failure to introduce expert testimony was grounds for reversal.

The Courts'Rulings

The Texas Medical Liability and Insurance Improvement Act is very specific and requires the presentation of an expert opinion in order to proceed. The dismissal of the first case was upheld. In the California case, the jury award to the plaintiff was upheld even though expert testimony was not presented.

The Courts'Reasonings

What was the difference in these cases? The Texas statute was enacted to prevent an adverse impact on the availability of medical care and to help control rising health care costs created by lawsuits. Under this law, plaintiffs alleging malpractice are required to comply with certain procedural requirements. One of these requirements is to provide each defendant health care provider with an expert's report describing the applicable standard of care under the circumstances of the case. The report must further show the connection between the provider's failure to meet this standard and the plaintiff's injury.

The Texas statute specifically included pharmacists as health care providers. The plaintiff made some futile arguments as to why it was not necessary to submit the expert's report, but the court was not persuaded. The dismissal of the action was affirmed.

In the second case, the California appeals court also had to examine the need for an expert's opinion. Under California law, expert testimony is required to prove a pharmacist's negligence, unless the conduct required under the circumstances is within the common knowledge of nonpharmacists. Applying this legal standard, the court found that no expert testimony was needed to conclude that a pharmacy that dispensed the wrong medication (a drug completely different in name and substance from what was prescribed) was negligent. The jury's verdict was affirmed.

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

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