Pharmacy Law: May a Physician Testify as a Pharmacy Expert Witness?

MARCH 01, 2008
Joseph L. Fink III, BSPharm, JD

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

Issue of the Case

In many civil trial cases, an expert witness may be present to explain the intricacies of a professional's activities to the jurors so jurors can better decide the case. In a case alleging negligence by a pharmacist when dispensing medication, may that expert witness be a physician who is not trained or experienced in the practice of pharmacy?

Facts of the Case

A woman in a Midwestern state was admitted to the hospital through the emergency room because of shortness of breath and continuing tiredness. She was diagnosed as having a hypoactive thyroid. Her physician issued a prescription of 2.5 milligrams of Synthroid (levothyroxine), but he later admitted that he intended to write 25 micrograms, one hundredth of what he actually prescribed.

The patient's daughter presented the prescription for dispensing, and the pharmacist commented that the dosage appeared to be high for a patient undergoing initiation of therapy. He also noted that the computer software in the pharmacy flagged the prescription as being in excess of recommended dosage. He had, however, dispensed prescriptions for that strength in the past, and he did not consider it to be a "poisonous" dose. There was disputed testimony regarding whether the pharmacist called the prescriber to verify the dosage specified.

The patient's health deteriorated after she began taking the medication. The family made repeated efforts to contact the physician, and he returned their calls about 1 week after her initial hospital admission. At that point, he uncovered the dosage error and instructed the family to give the patient one-half tablet rather than the full dosage unit. Within 2 weeks of her emergency room visit, the patient died.

The Court's Ruling

The case went before federal court on a motion for summary judgment filed by the defendant pharmacy—meaning the court views everything in a light most favorable to the plaintiff, then ascertains whether the plaintiff has presented a sufficient case to proceed or if the court proceedings should be terminated at that point because some key element of the plaintiff's case is absent.

The court ruled in favor of the defendant pharmacy chain because the plaintiff had failed to establish the appropriate standard of care applicable to the pharmacist by using relevant expert testimony. The case was dismissed.

The Court's Reasoning

First, in a hearing on a motion for summary judgment made by the defendant, the judge assumes all issues to be most favorable to the plaintiff. For example, on the disputed matter of whether the pharmacist called the prescriber to check the dosage, for purposes of deciding this motion, the judge assumed the pharmacist had not placed that telephone call.

Next, 2 types of witnesses may be involved in a case. Fact witnesses have firsthand knowledge of the situation being considered and may testify about what they saw or what they know about the matter. Expert witnesses have no firsthand knowledge of what transpired and are included in the proceedings to help the jury reach a more informed decision. Fact witnesses may testify only about what they know and not offer opinion testimony. Expert witnesses, however, may offer professional opinions about the issues in the case. Whether an individual is qualified to serve as an expert witness in a case is a question for the judge.

The judge pointed out that state law requires that the pharmacist owes the patient a duty of reasonable care. It is the responsibility of the plaintiff to define the duty of reasonable care and establish how that duty was breached. For the jury to determine whether a professional has met the applicable standard or care under the circumstances, expert testimony in that field is required.

In this case, the plaintiff had listed only 1 expert witness, a physician. The court emphasized that "the precise question is whether [the physician] is sufficiently qualified as an expert to testify about the standard of care of a pharmacist." Acknowledging his credentials as a physician, the court noted that he did not indicate whether he had any knowledge about the practice of pharmacy.

Specifically, the court said: "Nowhere in his opinion does he offer what a pharmacist should do when filling a prescription, when a pharmacist should question or reject filling a prescription, or when a pharmacist should double check with a physician about a prescription."

The court summarized: "Simply put, the physician's opinion reveals insufficient knowledge about pharmacy."

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