On The Docket
David B. Brushwood, BSPharm, JD
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. ■