Pharmacy Law: Danger From Physician's Prescribing Activities

Joseph L. Fink III, BSPharm, JD
Published Online: Wednesday, February 13, 2013
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The case of a deadly pharmacy robbery brings a wrongful death lawsuit.

Issue of the Case

When a prescriber engages in activities labeled as “overprescribing” analgesics that are controlled substances to a drug addict, and then that “patient” engages in extreme criminal behavior, may the physician who provided access to the medications be held liable in a wrongful death action?

Facts of the Case

During the robbery of a pharmacy in a mid-Atlantic state, the perpetrator shot and killed 4 people. He was arrested and subsequently convicted on charges of robbery and 4 counts of murder. He was sentenced to 4 consecutive life terms.

When the process with the criminal charges had been completed, the family of one of the shooting victims filed a wrongful death action against a number of parties. Such a legal action is the civil law parallel to a charge of murder but with monetary consequences rather than incarceration.

A civil lawsuit for wrongful death was made possible because if a miscreant injured someone but not to the extent of causing death, a claim could be filed in court by the person suffering the injuries. However, if death was the result, there could be no lawsuit filed because one must be alive to file a claim. Hence, the law created the concept of a wrongful death action so the survivors could pursue the claim.

The lawsuit filed by the surviving relatives named a collection of defendants. The manufacturer of the medication that was prescribed for the murderer was named, as was the former local police commissioner and the county government for which he worked. A number of physicians who had prescribed the medications for the murderer were also identified as defendants in the suit.

Prior to trial, the attorneys representing the manufacturer made a motion to have the case dismissed with regard to it. Similar motions were made by the other defendants identified above.

The Court's Ruling

The claim against the manufacturer was dismissed. The motion to excuse the police commissioner and the county was also granted. However, when reviewing the motion to dismiss one of the prescribers, the judge did not dismiss that part of the case.

The Court's Reasoning

With regard to the manufacturer, the court focused on the elements necessary to maintain a negligence action for wrongful death against the firm, with the first item on the list being a legal duty to do something or refrain from doing something. Reviewing state law on that point, the judge pointed out the general rule is that a defendant “generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control.” Focusing on a ruling from an earlier case, he continued with the point that the law of that state “does not impose a duty upon a manufacturer to refrain from the lawful distribution of a nondefective product, nor will the courts of this state hold a manufacturer liable from the criminal conduct of a third party over which it had no control.”

The judge also found insufficient basis for the claims against the police commissioner and the county government.

Turning to the allegations against the prescriber, the court noted the general rule in the state was that a “medical provider did not have a duty to the general public to control the conduct of a patient and was not liable for failure to intervene to protect others.” But the judge continued on to emphasize that the foregoing statement is the general rule. In this case, the allegations were that the prescriber “recklessly and affirmatively contributed to the addiction of the murderer which allegedly motivated his murderous spree.” Or expressed an alternate way, “plaintiffs claim that the prescriber created a risk of harm to the general public by providing the means through which the murderer became addicted and dependent upon the medication.”

The theory ran that the prescriber “knew or should have known that there was a risk that the murderer would engage in criminal conduct in a desperate need to feed his addiction.” Thus, it was being alleged that the prescriber recklessly helped create the danger to the welfare of the public. The judge differentiated the lack of a legal duty to control the acts of the murderer from the “obligation to refrain from over-prescribing addictive drugs in an irresponsible and potentially criminal manner.”

Rather than dismissing the claim against the prescriber, the judge authorized the proceedings to advance to the step in the process where pre-trial discovery activities occur. The judge noted that the emphasis at that point would be to “explore…the level of his alleged involvement, if any, in the addiction and whether the prescriber knew or had reason to know that the ‘patient’ presented a risk of harm to himself or others.”


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