Are There Times When a Legal Duty Not to Dispense Exists?

Pharmacy Times, October 2016 Diabetes, Volume 82, Issue 10

When pharmacists at a community pharmacy repeatedly honored prescriptions for controlled substances before the supply previously dispensed should have been exhausted, may a lawsuit be maintained by the representative of the patient’s estate for breach of a legal duty owed the now deceased patient?

ISSUE OF THE CASE

When pharmacists at a community pharmacy repeatedly honored prescriptions for controlled substances before the supply previously dispensed should have been exhausted, may a lawsuit be maintained by the representative of the patient’s estate for breach of a legal duty owed the now deceased patient?

FACTS OF THE CASE

A patient in a southern state consulted a physician, who gave a diagnosis of stress syndrome, and, therefore, prescribed alprazolam and either hydrocodone with acetaminophen or oxycodone with acetaminophen. Over a 2-year period, these prescriptions were repeatedly issued to the patient before the last refills should have been consumed. It was alleged that at least 30 such prescriptions were dispensed at the same pharmacy and no questions were raised by the pharmacist. This lack of questioning the refill requests persisted even when the prescriptions were “issued too closely in time and days before the preceding prescription should have been exhausted.” The patient died shortly before the 2-year anniversary of being on this regimen, with the cause of death identified as “combined drug intoxication with alprazolam and hydrocodone.”

An individual representing the estate of the now deceased patient filed suit against the physician and the pharmacy, with the physician settling the claim out of court. The legal complaint filed to initiate the lawsuit against the pharmacy alleged 7 different types of breaches of legal duty by the pharmacy. An abbreviated description of some of those claims is that the pharmacy and pharmacist have a legal duty to (1) use due and proper care, (2) exercise the level of care and skill recognized by reasonably prudent and similar pharmacists, and (3) not honor prescriptions that were unreasonable as presented.

The attorney representing the pharmacy filed a motion with the state trial court hearing the case, stating the matter should be dismissed based on earlier cases, decided by courts in that state, that established precedent that pharmacists had no legal duty to do the things the plaintiff alleged. The trial court granted that motion, and the representative of the patient’s estate filed an appeal of that dismissal with the state court of appeals.

THE COURT’S RULING

Following review and discussion of the decisions in a number of prior cases in the state, the appellate court ruled that the lawsuit should not be dismissed.

THE COURT’S REASONING

The appellate court began by pointing out that the trial court judge had concluded that the pharmacy owed no duty to the patient that would support the lawsuit. The appeals court emphasized that if a legal duty to act were absent, there could be no successful claim of negligence. However, in the view of the appellate court, there was a legal duty to act, so the dismissal was an error.

The principal point of departure for the court was that “pharmacists are required to exercise that degree of care that an ordinary prudent pharmacist would do under the same or similar circumstances.” Further, it reviewed an earlier decision by the court of appeals, which had concluded that “a pharmacy that fills a prescription that is unreasonable on its face may breach its duty of care, even if the prescription is lawful as written.”

Delving further into case precedent, the court also identified an earlier decision ruling that “negligence liability can be imposed on a pharmacy for failing to use due and proper care in filling prescriptions, even if the prescription is filled in accordance with the physician’s instructions.”

The appellate court in this case concluded that “a pharmacist’s duty to use due and proper care in filling a prescription extends beyond simply following the prescribing physician’s directions.” Continuing, the court said, “We refuse to interpret a pharmacist’s duty to use ‘due and proper care in filling a prescription’ as being satisfied by ‘robotic compliance’ with the instructions of the prescribing physician.”

This court looked at the precedent from an earlier case involving a pharmacist’s failure to act on a patient’s medication allergies. In that case, there was an allegation of negligence based on the pharmacist’s failure to alert a patient that a prescription contained a substance to which the customer was allergic, and the court ruled that the “pharmacy has a duty to use proper care in filling a prescription, beyond simply following the prescribing physician’s directions.”

At the end of its published opinion, the appellate court pointed out that further proceedings were required to determine whether the plaintiff would prevail once the trial was concluded, along with all testimony and evidence, but at least a legal duty to act to protect the patient was present in the facts presented.

Dr. Fink is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.