On The Docket
David B. Brushwood, BSPharm, JD
When a medication has caused harm, everyone involved with the distribution and use of that medication is potentially accountable for the harm, including any person who abused the medication resulting in that person’s death. A recent case from Pennsylvania applied the legal doctrine of in pari delicto (in equal fault) to absolve a pharmacy from liability following the death of a person who fraudulently acquired an opioid medication from the pharmacy.
Background
A lawsuit against the pharmacy was filed by the estate of a deceased college student. The decedent’s mother suffered from multiple myeloma and had on file at the defendant pharmacy a prescription for fentanyl patches that could be dispensed at her request.
A friend of the decedent called the pharmacy pretending to be the mother, and the friend requested the fentanyl patches be dispensed pursuant to the prescription. The decedent drove the friend to the pharmacy, where the friend picked up the fentanyl patches.
The friend and the decedent then each ingested the contents of a fentanyl patch. The decedent fell asleep and could not be awakened, and was pronounced dead after being transported to a hospital.
The lawsuit against the pharmacy alleged negligence in allowing a person who was not a family member to acquire the medication with no questions asked.
The pharmacy moved the court for dismissal of the lawsuit based on in pari delicto. The pharmacy’s motion was granted and the estate appealed.
Rationale
The appellate court first noted that the in pari delicto defense applies “when the plaintiff is an active, voluntary participant in the wrongful conduct or transaction for which he seeks redress and bears substantially equal or greater responsibility for the underlying illegality as compared to the defendant.”
The plaintiff contended the doctrine was inapplicable in this case “because [the decedent] did not engage in anything that was immoral or illegal.” Rather, it was the friend who had engaged in immoral and illegal conduct. The friend was named as a codefendant in the lawsuit, but only the pharmacy had moved for dismissal of the case.
The appellate court disagreed with the plaintiff’s contention. The court concluded that “by participating in the scheme to obtain fentanyl and by illegally possessing the fentanyl at [the friend’s] house, the decedent was an active, voluntary participant in the wrongful conduct for which the plaintiff seeks redress, and bears substantially equal or greater responsibility for the underlying illegality as compared to [the pharmacy].”
The court affirmed dismissal of the case against the pharmacy.
Discussion
Pharmacists have a responsibility to provide medications to those who need them for medical treatment, and to prevent acquisition of medications by those who would divert and/or misuse them.
It is not uncommon for a person other than the patient to pick up a controlled substance medication at a pharmacy. This is particularly true when the patient has a cancer diagnosis. If pharmacists routinely refused controlled substances under these circumstances, many patients who need medications would not get them.
On the other hand, DEA has advised that it can be considered a “red flag” when “a patient presents prescriptions written in the names of other people.” A cancer diagnosis does not by itself justify ignoring indicators of controlled substance diversion.
The plaintiff in the Pennsylvania case argued that the defendant pharmacy could have called the patient to verify her request for the fentanyl, and the medication would not have been dispensed if that call had been made. The court in this case engaged in a balancing of illegality, as courts often do. The court held that the decedent’s illegal conduct tipped the balance away from the pharmacy.
This ruling raises the question: How illegal must the conduct of a person with substance use disorder be to offset the alleged illegality of a pharmacy defendant?