Patient's Own Negligence Bars Recovery for Damages

Pharmacy TimesOctober 2019 Diabetes
Volume 85
Issue 10

The court rules that she caused her own death by failing "to use ordinary care" when taking prescriptions intended for someone else


When a patient in a Southern state receives a package from a mail-order pharmacy containing medications for a different person and she consumes them, causing her death, can the representatives of her estate maintain a successful lawsuit for negligence against the pharmacy?


The patient in this case was receiving a prescription drug benefit under a health insurance plan that had an arrangement with a mail-order pharmacy to supply medications to its beneficiaries. The staff members at the pharmacy were processing a prescription for sevelamer, a medication used by patients undergoing renal dialysis to lower the amount of phosphorus in the blood. That prescription was to be shipped to the patient. At the same time, the staff members were preparing 6 prescriptions to be shipped to a different patient in a Western state. Those 6 were carvedilol, diclofenac, hydrochlorothiazide, levothyroxine, lisinopril, and simvastatin.

The standard practice was that prior to delivery of the medications, the patient would receive an automated telephone call advising her of the delivery date. Two packages bearing medication were delivered to the patient’s home on different days. The first was preceded by the phone call alert, whereas the second was not.

The daughter of the patient, who lived with her, retrieved the first package when it arrived following the telephone alert and gave it to her mother. The mother did not use the newly arrived medication to replenish the supply in her medication organizer because it had arrived early, seemingly the result of an upcoming holiday. When the second package arrived, the daughter placed it on her mother’s dresser, as she always had.

When the mother opened the second package a day later, the daughter noticed that the dosage forms appeared to have a different color than that of the forms the mother had been following. The daughter instructed her mother to set those aside and use the first set that had arrived until she could investigate the matter. When the mother had opened the second set of prescription vials, some of the medication had fallen to the floor and were discarded.

Later, the mother asked her daughter’s boyfriend to bring her the package from the top of the dresser, and he saw her consume some of those medications. Two or 3 days later, the patient suffered a fall at home, leading to a monthlong hospitalization. Two weeks after returning home, she died. The death certificate indicated the immediate cause of death was pneumonia, with contributing factors being end-stage renal disease, myocardial infarction, and urinary tract infection.

A lawsuit was filed in state court but removed to federal court because the parties to the matter were in different states. Both sides made motions with the trial court to be granted summary judgment. This essentially asks the judge to rule that no genuine issues of material fact for the trial exist, and as a result, no trial is needed.


The trial court judge ruled in favor of the defendant’s motion for summary judgment, concluding the matter.


First the court addressed the issue of which state’s law should be applied to decide the matter. The patient was in one state and the pharmacy in another. Under the law of the state where the court and the patient were situated, tort claims are to be governed by the law of the state where the injury occurred. Consequently, the law of that state governed all legal issues in the case.

The court then turned to the elements of a negligence claim: legal duty, breach of that duty, and direct causation of the damages. Direct causation means that the breach of the duty by the defendant led directly and without interruption to the damages. It had to have been the proximate cause of the injury. In this matter, the defendant raised an argument that the decedent had caused her injuries by her ingestion of the incorrect medication, which was intended for someone else. The medication bottles were clearly labeled with the name of a different patient. By overlooking that fact, the patient contributed to her own injury, so the argument ran. There was an indication that the patient could not read well, but she did complete a number of household functions involving reading skills.

The court concluded that she “failed to use ordinary care when she took prescription medications from bottles which were plainly marked as having been prescribed for another person.”

As a result, she “carelessly exposed herself to a danger or risk of which she knew or should have known.” This is referred to as contributory negligence. Under the law of the state where she resided, contributory negligence is a total bar to recovery. That led to the court’s ruling in favor of the defendant.

Notably, nearly 40 states follow a different approach, which allocates blame among the parties (eg, 75/25, 60/40, etc). This is the so-called comparative negligence rule. The award to the injured party is reduced by the percentage that the plaintiff contributed to the injuries.

Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA, 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 in Lexington.

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