Pharmacy negligence resulting in a prescription being improperly filled can be lethal to the patient.Although not normlly thought of as constituting medical malpractice these claims are akin to medical malpractice actions.
In pursuing a claim of this nature it is important that not only the negligence of the pharmacist be emphasized but also the inherent negligence of the pharmacy be emphasized in terms of creating a time urgent delivery system. This time urgent delivery system is probably not much different than what you find with some pizza delivery firms that operate in a rush rush environment in order to get the pizza in the oven, out the door and delivered within a set amount of time. That same rush rush attitude may apply to the pharmacy and it is a theory of liability that should be fully developed by looking at staffing issues, how people are paid, how many hours they work per day, how many prescriptions they are expected to fill and how many prescriptions they did fill on the day in question.
In terms of joining the necessary defendants it is critical to sue the actual pharmacist even though the pharmacist may not have been the one who physically filled the prescription. 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 that may be employed in the pharmacy and thereby establishing the potential liability of the employer. If the corporate entity that owns the actual pharmacy is part of a larger entity, then it may be necessary to sue that corporate parent since it is the corporate parent that may have set the policies that govern that individual entity.
In a pharmacy negligence case it is not unheard of that the pharmacy may raise as a defense that the improper medication was taken by the patient because that medication was improperly mixed by the patient himself or by some other family member into the container in question. 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 in order to show that the medication in issue had never been obtained by the plaintiff or other family members.
When the error is reported to the pharmacy typically the pharmacy will prepare an incident report. It is critical to get that incident report because 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 where professors are frequently all too aware of the problems associated with chain pharmacies.
The state licensing board may likewise have interesting information 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.
Suppose your pharmacist has filled a prescription for a medication and knows when doing so that you have already been prescribed another medication and that the two medications cannot be used in conjunction with each other, i.e. they are contraindicated. Do you have a claim against the pharmacist for failing to warn you and/or warn your physician of that potential danger? The answer may be governed by the learned intermediary doctrine.
In some jurisdiction the so-called Learned Intermediary Doctrine may protect a pharmacist from a pharmacy negligence claim in this circumstance. 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 because it was highly addictive. The Supreme Court of Washington said that it is only the physician who can relate the particular characteristics of the drug to the physical needs or oddities of the patient and held therefore that the pharmacist did not have any duty to question the judgment of the physician as to the correctness of that prescription. That defeated any pharmacy negligence claim.
In Happel v. Wal-Mart Stores, Inc., 766 N.E.2d 1118 (Ill. 2002), the Court took a somewhat different position noting that, in this instance, Wal-Mart was aware not only of Happel’s drug allergies but also that the particular medication was contraindicated for persons such as Happel that had an allergy to medicine. The Court noted that imposing a duty to warn on Wal-Mart in this instance would not intrude into the doctor-patient relationship and would not thereby 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 in 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 and 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 physician of the potential inconsistency.
If you have been injured as a result of pharmacy negligence contact us.