Court considers pharmacist liability in opioid-related case
Judicial rulings in the large volume of opioid-related lawsuits continue to clarify pharmacists’ legal responsibilities that are broadly applicable beyond opioid litigation. A recent case from New Jersey addresses a novel approach to pharmacist liability. Rather than alleging that the defendant pharmacies were liable for causing a patient to become addicted to dispensed opioids, this recent case contended that the defendants’ pharmacists knew, or should have known, that the patient was already addicted to opioids and that their negligent dispensing of opioids exacerbated the patient’s pre-existing condition.
Background
The plaintiff was the estate of a deceased patient. The estate sued four pharmacies that had dispensed oxycodone to the patient, sometimes in combination with alprazolam. The patient allegedly died as the result of the defendants’ negligence. The prescriber of the controlled substances was also sued, but that lawsuit was separated from the pharmacy litigation.
The lawsuit against the defendant pharmacies alleged that pharmacists honored prescriptions for the patient “that they knew or should have known were negligently, carelessly, and or recklessly prescribed, given their amount and frequency.” The lawsuit alleged that the pharmacists “engaged in professional malpractice by not noticing that the amount and frequency of the prescriptions were for addictive medications outside reasonable practice, and by not refusing to fill those prescriptions.”
The pharmacies moved to dismiss the lawsuit based on the learned intermediary doctrine, contending that it is the physician, and not the pharmacist, who has a duty to warn the patient. The pharmacies also contended that the lawsuit did not properly allege proximate cause, because it was the patient’s underlying condition that caused her death, and not any action or inaction by the pharmacists.
The trial court granted the pharmacies motion to dismiss the lawsuit, and the plaintiff appealed.
Rationale
On appeal, the court first considered the defendants’ defense based on the learned intermediary doctrine. The court recognized that the doctrine applies to pharmacists who accurately process prescriptions “issued in amounts and at frequencies within reasonable medical standards.” According to the doctrine, it is the prescriber, and not the pharmacist, who is the learned intermediary and who has the duty to warn the patient of medication-related risks. However, the plaintiff’s lawsuit did not allege the breach of a duty to warn the patient of risks. The lawsuit alleged the breach of a duty to refuse the improperly issued prescriptions. Therefore, the learned intermediary doctrine was ruled to be inapplicable.
The appellate court also disagreed with applicability of the defendants’ proximate causation defense. The court noted that a plaintiff need not allege that a defendant’s conduct was the only cause of the plaintiff’s injury. Rather, “a plaintiff may recover if he establishes that professional negligence increased the risk of harm posed by a preexisting condition and the increased risk was a substantial factor in producing the harm.”
The dismissal of the lawsuit was reversed on appeal and the case was remanded to the trial court for further proceedings.
Takeaways
This case illustrates a variation of the legal principle known as the “eggshell plaintiff” doctrine. Under that doctrine, an allegedly negligent defendant must accept the plaintiff’s condition when the plaintiff was presented to the defendant, even if that condition is as fragile or as delicate as an eggshell. The defendant cannot escape liability by arguing that the action taken by the defendant toward the plaintiff would have been harmless if the plaintiff had not been so susceptible to the harm.
The significance of this case is that pharmacists may have a legal duty to know a patient’s underlying condition, and to refuse pharmaceutical products or services that exacerbate the underlying condition. Pharmacists can know of an underlying condition based on a patient’s medication history or information contained in the medication record. Suspicions about a patient’s underlying condition that arise due to a pattern of medication use can be investigated by consulting with the patient or with the prescriber. ■
Filed under: General Problems
I lost my livelihood and had to quit working because I was discriminated against by Walgreens.
When they were making loads of money from me for 8 years from Lyrica and other medications they pretended to care. I had an autonomic crisis because they refused a medication only they had. It was not a controlled medication. They would not fill my medications or transfer the prescriptions.
I understand the pharmacist was forced to not give a crap. I am disposable. Only money matters. Pharmacists should not be liable. There has to be a way to protect pharmacists and doctors so we can get the medications we need. I would not want anyone sued if I died from the medications I’ve been on for over 10 years.
AGAIN,JUST MORE PROOF OF THEE ACCEPTANCE OF TORTURE IN THE HEALTHCARE SETTING,AND TORTUREING THE MEDICALLY ILL SHOULD BE ILLEGAL,??!!!!,,I SWEAR TO GOD WE ARE BACK TO THE NEANDERTHAL DAYS OF MEDICINE,,BITE A STICK FOR CANCER PAIN,PANCREASE PAIN ETC,,WHAT A DEMENTED GROUP THINK,” WHEN TORTUREING OUR SICK AND DIEING HAS BECOME LEGAL, A COMMODITY ,JUST LIKE THE WITCH HUNTS OF THE 1600’S,,MANKIND TRULY IS IN NEED OF LAWS TO PROTECT THE WEAKEST AMONGST US,,,FOR U GOT THINGS LIKE KOLODNY/BALTYNE DEMENTED GROUP THINK MENTALITY THAT TRULY BELIEVE TORTURE IS ACCEPTABLE TO OUR SIC AND DIEING OBVIOUSLY,,,GIVING US LAWS ON HOW TO DIE,,TTHE TORTURES ARE THE HERO’S AND THE HUMANE ARE ARRESTED AND JAIL,,,TORTURE IS THEIR COMMODITY,,THUS THEY DANCE ON OUR GRAVES,,,,WHAT A SICK SICK TIME WE LIVE IN WHERE EVIL,IS TRULY SUFFERABLE,AND ACCEPTED,,,AND HATE CRIMES AGAINST THE WEAK ARE ACCEPTED IN A COURT OF LAW,,WOW,,MW
I agree. No one gives a damn about chronic pain unless they have it or can make a buck or 2, or $750,000 to serve as an “expert” witness on a big opioid trial. The person I’m talking about is Andrew Kolodney. Twisted, sick individual who perpetuates lies about opioids and thinks they are only for the dying. There will be a day when he gets an injury or chronic illness and will be begging for something other than Tylenol or ibuprofen, which he promotes, as well as Suboxone. Suboxone is indicated for opioid addicts, which is a politically incorrect term, we must call them OUD sufferers, Opioid Use Disorder. I will continue to use the term addict because they were part of the problem of the supposed “opioid crisis”, that never was, at least not when it comes to RX opioids. Because the addicts seek a high, they have destroyed true pain patients’ ability to obtain relief from RX opioids. Pain patients do not get a high – unless they take more opioids than is needed to quell the pain. Every doctor should know this. I’m not a doctor and even I know this to be true.
I would LOVE to know what members of the fringe, lunatic, anti-opioid group of medical providers, PROP, have stock in the company that makes Suboxone. That would be very telling!
Andrew Kolodney has even said publicly, that for the “opioid crisis” to end, the people who take opioids would have to die off. Oh, and get this, Kolodney isn’t even a pain doctor! He is just a shrink who specializes in addiction. Why is he an expert on proper treatment of pain? I have to remember that karma will come to him. I may not live to see it, but what goes round, comes around.