Pharmacy Law: Liability Claim by Parents for Child's Reaction to Overdose

Pharmacy TimesMarch 2015 Central Nervous System
Volume 81
Issue 3

A medication dispensing error at a pharmacy, in which the directions for use were mislabeled, resulted in the hospitalization of a child. May the parents maintain a lawsuit against the pharmacy for damages?


A medication dispensing error at a pharmacy, in which the directions for use were mislabeled, resulted in the hospitalization of a child. May the parents maintain a lawsuit against the pharmacy for damages?


A child younger than 1 month was taken to a hospital in a southern state by his parents because he was suffering seizures. Admitted for a month-long stay, the child was issued a prescription at the time of discharge. The prescriber had instructed that the child be administered phenobarbital at a dosage of 15 mg twice per day.

At the time of dispensing, the prescription was mislabeled by a worker at the national pharmacy chain’s prescription department. The erroneous directions indicated that the child was to be administered 15 mL of the liquid medication twice per day. This error resulted in the child receiving at least 3 times as much medication as had been requested by the prescriber.

At some point after receiving the incorrect higher amount of active ingredient, the child experienced stiffening of his limbs, a coughing spell, and difficulty breathing. The parents took the child to the hospital the next day.

A lawsuit was filed in federal court naming as plaintiffs the mother, the father, and the child. The parents sought to recover the expenses for the health care services provided to their son, and to obtain compensation for alleged negligence by the pharmacy staff, gross negligence by the pharmacy staff, and emotional harm they suffered while witnessing the challenging health predicament of their son. The pharmacy chain was the defendant, and the corporation made a motion to dismiss the claims.


In deciding on the motion to dismiss the entire lawsuit, the court ruled that the parent’s claims for negligence, gross negligence, and mental anguish should be dismissed. The judge did, however, permit the claims related to recovery of medical expenses incurred for treatment of the child.


Focusing on the first element of a negligence claim, the existence of a legal duty on behalf of the defendant, the court ruled that when the pharmacy and its staff dispensed the prescription for the child, it had a duty to do so correctly. However, the court ruled that the existing legal duty did not extend to include the parents.

Applying the law of the state where the case arose, as expressed in a state statute, the judge ruled that the state law does not permit the parents to recover individually, under legal theories of negligence or gross negligence, for the dramatic and frightful reaction resulting from the labeling error. The judge said, “State law does not permit bystanders to recover damages for their anguish in medical malpractice cases, however understandable it is for them to be upset.”

The parents had cited for support of their attempt to recover for negligence, gross negligence, and anguish a prior case in which a woman had sued for being a witness to an assault on her mother while in a nursing home. This court, however, differentiated that prior case as one involving “simple negligence” that was not covered by the relevant state statute. The state statute in question was titled the “Medical Liability and Insurance Improvement Act” and was inapplicable to a situation like that in the prior case in which a patient in a nursing home attacked another.

The court differentiated negligence claims based on provision of medical care, covered under the statute, from those not related to provision of health care and therefore not covered. In the instance in which a nursing home patient attacked another, the judgment of the prior court had been that the statute did not apply to bar recovery by the daughter who witnessed the attack. It was deemed to be simple negligence on the part of the nursing home, not negligence tied to provision of health care services. The court here drew the parallel to a visitor to a nursing home who tripped in a poorly maintained parking lot.

Regarding the case at hand, the court ruled that the pharmacy’s departure from the standard of care or its legal duty is a departure from the medical standard of care—something addressed by the statute, which bars recovery for emotional harm by bystanders. The parent’s claim against the pharmacy chain for recovery of expenses incurred as a result of the second hospitalization of their son was allowed to proceed. Their other claims were dismissed.

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

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