Pharmacy Negligence

Fairfax Injury Lawyer Brien Roche Addresses Pharmacy Negligence Cases

Brien Roche

Pharmacy negligence resulting in a prescription being improperly filled can be lethal to the patient. Although not normally thought of as constituting medical malpractice these claims are akin to malpractice actions.

Pharmacy Negligence and Time Urgent Delivery

In pursuing a claim of this nature it is important that not only the negligence of the pharmacist be emphasized but also the negligence of the pharmacy.  For instance has the pharmacy created a time urgent delivery system?  This time urgent delivery system is probably not much different than what you find with some pizza delivery firms.  They operate in a rush rush environment. The goal is to get the pizza in the oven, out the door and delivered within a set amount of time.  In other words that same rush rush attitude may apply to the pharmacy.  It is a theory of liability that should be fully developed.  Also look at staffing issues, how people are paid, how many hours they work per day. Also how many prescriptions they are expected to fill and how many prescriptions they did fill on the day in question.

Pharmacy Negligence Must Involve the Pharmacist

In terms of joining the necessary defendants you need to sue the actual pharmacist.  This is true even though the pharmacist may not have been the one who filled the order.  It may have been filled by a technician.  The pharmacist, however, may become your best witness in terms of dealing with the time urgent delivery system. He can help establish the potential liability of the employer.  If the corporate entity that owns the pharmacy is part of a larger entity, then it may be necessary to sue that corporate parent. It is the corporate parent that may have set the policies that govern the entity.

Negligence of The Patient

In a pharmacy negligence case the pharmacy may raise as a defense that the improper medication was taken by the patient because it was improperly mixed by the patient.  Or they may claim it was improperly mixed by some other family member. To refute that you may have to obtain prescription histories from all of the pharmacies that your client’s family has used over the last several years.  You must show that the medication in issue had never been obtained by the plaintiff or other family members.

Preparing For Trial

When the error is reported to the pharmacy typically the pharmacy will prepare an incident report. It is critical to get that report.  It may contain admissions that the prescription was improperly filled. Such admissions may be admissible in a pharmacy negligence case.

In terms of locating potential expert witnesses, an excellent place to look is at pharmacy schools. Professors are all too aware of the problems associated with chain pharmacies.

Likewise the state licensing board may have interesting info about the history of this pharmacy and/or pharmacist.

By federal law pharmacists are required to offer to Medicaid and Medicare patients counseling in regards to the prescription. Many states likewise require the same. Most pharmacies ask the customer to sign a document waiving that counseling. The customers typically do not even know what they are signing.

Negligence Based On Contraindications

Suppose your pharmacist has filled a prescription for a medication and knows when doing so that you have already been prescribed another medication. In addition the two cannot be used with each other.  They are contraindicated. Do you have a claim against the pharmacist for failing to warn you and/or warn your doctor of that potential danger? The answer may be governed by the learned intermediary doctrine.

Learned Intermediary

In some jurisdiction the so-called Learned Intermediary Doctrine may protect a pharmacist from a pharmacy negligence claim. In the case of McKee v. Am. Home Prods., Corp., 782 P.2d 1045 (Wash. 1989) the plaintiff was prescribed an amphetamine as an appetite suppressant. It was well known within the medical and pharmaceutical community that the drug should be discontinued after a few weeks. It was highly addictive. The Supreme Court of Washington said that it is only the doctor who can relate the characteristics of the drug to the physical needs of the patient.  Therefore the Court held that the pharmacist did not have a duty to question the judgment of the doctor. That defeated any pharmacy negligence claim.


In Happel v. Wal-Mart Stores, Inc., 766 N.E.2d 1118 (Ill. 2002), the Court had a somewhat different view.  The Court noted that Wal-Mart was aware not only of Happel’s drug allergies but also that the medication was contraindicated for persons such as Happel. He had an allergy to the medicine. The Court noted that imposing a duty to warn on Wal-Mart in this instance would not intrude into the doctor-patient relationship.  This would not compel the pharmacist to be practicing medicine without a license.


In a decision from the D. C. Superior Court entitled Keffer v. Lorenz, 140 DWLR 1673 (Jul. 19, 2012), the Court noted that CVS Pharmacy was not protected by the Learned Intermediary Doctrine. This was a pharmacy negligence case where the pleadings alleged that CVS was aware of serious adverse interactions between two different medications that it was providing to a customer. Furthermore it was aware of the substantial threat that this posed to the customer. The Court held that armed with that knowledge CVS had a duty to warn the customer or to notify the doctor of the potential inconsistency.

If you have been injured as a result of pharmacy negligence contact us.

Also for more info about pharmacies see the pages on Wikipedia.

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Pharmacy Negligence

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    Contact Us For A Free Consultation