On The Docket
David B. Brushwood, BSPharm, JD
Many adverse events can occur following an error by a pharmacist, yet eventually the consequences for a patient can become so disconnected that the chain of causation will break, and there will be no pharmacist liability. A case from Texas demonstrates how liability for pharmacist errors may be limited by the legal rules of causation.
Background
A patient had recently moved from Oregon, where he had lived with his mother, to Texas, where he now lived with his father. The patient brought with him a new prescription for clonazepam from his Oregon physician. He presented this prescription to a Texas pharmacy, and the medication was dispensed to the patient.
Thirty days later, the patient requested that the prescription be refilled, and the pharmacy dispensed the medication pursuant to refill authorization in the original prescription. Unbeknownst to both the patient and the pharmacist, the Oregon physician had died a week earlier.
On the same day that the refill was dispensed, the patient attempted suicide by ingesting all of the medication. He was transported to a hospital emergency department (ED), and while awaiting treatment, he fled the ED and was killed when he ran into traffic on a nearby freeway.
The patient’s estate sued the pharmacy for negligence in failing to verify the prescription with the prescriber and thus discover that it was no longer valid following the prescriber’s death. As is required under Texas law, the lawsuit was supported by an expert report. The expert was a pharmacist who asserted that the pharmacy had breached the standard of care and that the breach had caused the patient’s death.
Regarding causation, the pharmacist expert stated:
“I believe it is more likely than not that the prescription for clonazepam from Oregon, unlawfully filled by the pharmacy, significantly contributed to his death. If [the patient] would not have had access to the medication filled at that time, he would not have been able to consume a massive overdose. Clonazepam, a benzodiazepine that enhances a principle inhibitory neurotransmitter in the brain, causes clinically significant central nervous system depression. Acute toxicity from clonazepam overdosage may lead to drowsiness, confusion, and ataxia. I believe that clonazepam overdose contributed to [the patient] eloping from the hospital and his eventual death from being hit by an automobile.”
The pharmacy challenged the adequacy of the report, contending that a pharmacist is not qualified to provide an opinion on medical causation. The pharmacy’s motion to dismiss was denied, and the pharmacy appealed.
Rationale
On appeal, the pharmacy referred to a Texas statute that says only a physician may qualify as an expert on medical causation in a health care liability lawsuit. The plaintiffs countered that no expert report was necessary because the cause of death was a speeding car and not medical care. The appellate court concluded that “the effect that an overdose would have on [the patient’s] mental state, and whether his resulting mental state caused him to place himself in the middle of the freeway are, in fact, issues of medical causation. As such, it was necessary for a physician to opine about whether dispensing of clonazepam caused [the patient] to overdose.”
The appellate court reversed the lower court’s denial of the pharmacy’s motion to dismiss.
Discussion
Once the court decided that the issue in this case was medical causation, the court had no choice but to follow the statute and disqualify the pharmacist as an expert on causation.
The case did not address the standard of care issue, because it held that the element of causation was lacking. It is important, nevertheless, to consider risk management concerns related to honoring an out-of-state prescription for a controlled substance without prescriber verification. Pharmacists might be well advised to contact the prescriber for verification at the first dispensing, and to insist that the patient find an in-state prescriber thereafter.