Does a Pharmacist's Legal Duty Extend to Third Parties?

Pharmacy Times, May 2011 Skin & Eye Health , Volume 77, Issue 5

A patient who abused controlled substances causes a deadly accident, and the victim's family sues the dispensing pharmacies.

A patient who abused controlled substances causes a deadly accident, and the victim's family sues the dispensing pharmacies.

Issue of The Case

When a pharmacist dispenses medication that impairs the driving ability of a patient and that individual subsequently injures a third person while driving under the influence of the medication received at the pharmacy, does the dispensing pharmacist have a legal duty extending to the injured person that supports a lawsuit? Is the outcome different if the patient receiving the medication has an apparent history of abusing prescription medications?

Facts of The Case

A patient had hydrocodone dispensed at a pharmacy in a western state and was consuming that medication when she slammed her car into 2 men who had pulled their car to the side of the road to repair a flat tire. One of the men died and the other suffered severe injuries. The patient/driver was convicted of the crime of driving under the influence of a controlled substance and served a sentence of 9 months.

The families of the 2 men filed a civil lawsuit against the driver, 2 physicians who prescribed the medication, and 7 pharmacies where she obtained it. The argument advanced regarding the liability of the pharmacies was that pharmacists there had continued to honor prescriptions the driver presented for controlled substances, even after having been notified of her pattern of drug abuse.

The state in question, like many others, has a prescription drug monitoring program in place to track dispensing of controlled substances that recorded the name of the patient, prescriber, and pharmacy; the date of dispensing; and the medication name and quantity. About 1 year before the accident, the relevant state agency notified the prescribers and the pharmacies that the patient’s pattern of medication consumption might indicate she was abusing the medication. The letter to the pharmacies did not specify action to be taken but urged that they “use their professional expertise to assist patients who may be abusing controlled substances.” In court, the attorney for the families argued that the letter was ignored. He said some pharmacies threw the letter away and staff at none of the pharmacies noted the alert in their patient information databases.

Attorneys for the defendant pharmacies argued that there was no legal duty for the pharmacists at the pharmacies to act. Because state law did not make a bar operator liable for customers who drink and then drive while drunk, the same reasoning should be applied to the pharmacies in this situation. The attorney for the families argued that the situation in pharmacy is different and that pharmacists should have a legal duty to act when “drugseeking behavior” is present. The judge at the trial court level granted summary judgment for the defendants and dismissed the lawsuit, ruling that the law of the state was unclear about what should have been done at the pharmacies when the notice was received. During his ruling he emphasized the difference between a legal duty and an ethical obligation. He ruled that the former does not exist under the law of that state, but that he hoped that pharmacists would have an ethical obligation to act to curb prescription drug abuse.

The family members appealed the dismissal of the lawsuit to the state supreme court.

The Court’s Ruling

The state supreme court upheld the decision of the trial court judge, ruling that dismissal of the claim was indeed appropriate.

The Court’s Reasoning

The court focused on the lack of a direct relationship between the pharmacies and the individuals who were injured, concluding that no legal duty existed running from the pharmacies to the third parties who suffered the injuries. They were unidentified members of the public and unknown to the pharmacies where the medications were dispensed.

Also given weight was the fact that state law does not require that pharmacies follow up on the notification from the state agency that drug abuse was apparently occurring. This notice did not create a legal duty on the part of the pharmacies to protect third parties.

Turning to the provisions in state law licensing and regulating pharmacies and pharmacists, the court concluded that legal duties under those provisions extended to the patient receiving the prescription, not to members of the general public at large. Although there are a variety of provisions in state law describing standards of care applicable to those who engage in the practice of pharmacy, those expectations do not extend to unidentified third parties.

It should be noted that this decision of the state supreme court was limited to the claims against the pharmacies. The case against the physician prescribers continues and they have had their licenses to practice medicine revoked by the state board of medical examiners. PT

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