The Plain Truth About the Practice of Personal Injury Law

Monday, January 2, 2012

What Do You Mean I Cannot Sue the Pharmacist For My Drug Reaction?

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Before the takeover of the retail pharmacy industry by mega drug store chains such as Walgreens and CVS, small local pharmacies were the place we all visited for our pharmaceutical needs.  They were often located in the same neighborhood as our family physician. The pharmacist knew the medical history of family members and the physician that wrote the prescription. That personal knowledge provided a safety net to patients that they were receiving the correct prescription drug, in both the proper dosage and duration. In fact the pharmacist was the last line of defense if a prescribing mistake took place.
For the most part the family owned pharmacy is a thing of the past.  Mega sized chain drugstores are where we take our prescriptions to be filled. The staff pharmacist is likely not a member of the local community and may move from store to store as he or she is needed. The pharmacy counters are manned by so called “pharmacy assistants” who lack the years of formal education required to become a licensed pharmacist. The customer rarely gets to talk to or even see the pharmacist for consultation. Gone is the personal family relationship between the pharmacist and the customer.

So what role does the pharmacist now play in your health care? The answer depends upon who you are talking to. From a retail advertising prospective, the mega chain pharmacy does it all to the point that their advice often replaces the need to rum to the doctor.  We have all seen and heard television commercials where the drug chain boasts about its sophisticated computer systems where dangerous drug interactions are prevented and detailed important prescribing information accompanies all prescriptions. On their face those advertisements sure make you feel safe and secure knowing that you are in good hands of a professional pharmacist but beware of what you see and hear.

Hidden from the general public, drug store chains take the legal position that they are only responsible to fill the prescription as written by the physician and nothing more. In other words if a physician writes a prescription for a drug that the pharmacist knows or should know may be lethal in dosage or duration he or she has absolutely no responsibility to call the physician and discuss the issue with the doctor. They further claim that the pharmacist need not know the condition from which the patient suffers that caused the prescription to be written in the first instance.  The drug stores base this position by claiming is that it may not interfere with the doctor patient relationship. Not everyone receives the same dosage and duration of a particular medication for a particular condition.  In other words the years of sophisticated education and training that a pharmacist must complete to become licensed should not be used.  If the drug stores claim is true then any clerk that can read a label could perform the function of a pharmacist. A catalog clerk or hardware counter person should be able to fill prescriptions. Is this the function that you want your pharmacist to assume?

So which point of view is the current state of the law in Illinois and many other states?  Unfortunately for the consumer the “hidden” position taken by the drug store chains is in fact the majority view. You might ask yourself how can the courts allow these stores to get away with it? The answer is a hybrid application of the “learned intermediary doctrine” which is favorite defense of drug manufacturers.  In summary the “doctrine” holds that it is up to the physician to determine whether to prescribe a particular drug, dosage and duration for a particular patient. Under those circumstances, the pharmaceutical company has an obligation to the physician and not the patient to supply all necessary warnings regarding the drug. If a patient is harmed by that drug he or she may not sue the drug manufacturer unless the prescribing physician first blames the drug manufacturer for not supplying sufficient information or warnings to him or her regarding the drug. The courts have extended the doctrine to pharmacists using the same reasoning.

In a recent case I argued that a dosage of a particular drug, taken for a specified duration would cause harm to any human regardless of their age, weight or gender. The court denied the drug store chains’ motion to dismiss since the pharmacist should have known this fact without input from the prescribing physician. As the case progresses I will be writing follow up articles on this evolving area of malpractice/products liability law. 

1 comment:

  1. How can it happen? Pharmacists are typically responsible for adjusting medication doses as well as patient's drug reaction. That is why it is essential to study one's illness history to prevent some severe complications.