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Court recognizes potential liability for unfilled prescription
Roger Selvage 9042

Court recognizes potential liability for unfilled prescription

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On the Docket

Court recognizes potential liability for unfilled prescription

David B. Brushwood, BSPharm, JD

The Ninth Judicial District of the Court of Appeals of Ohio recently reversed the dismissal of a plaintiff’s lawsuit against a pharmacy that allegedly failed to provide the plaintiff with prescribed medication.


The plaintiff worked at a slaughterhouse where he “smashed the index finger on his left hand.” He was transported by the employer to an urgent care facility. A physician’s assistant (PA) stitched the finger that was severed “down to the bone” and ordered an X-ray. The PA concluded that the finger was not fractured, and the plaintiff was discharged without a prescription for medication and was transported back to work. A radiologist later read the X-ray and diagnosed a fracture. The PA then instructed a nurse to phone in a prescription for amoxicillin/clavulanate to the defendant pharmacy.

There was disagreement regarding when the nurse made this call. Although there was no documentation of any telephone call on that day, the nurse testified that her “regular practice” would be to immediately transmit the prescription to the pharmacy and to contact the employer to inform them that the patient should pick up the prescription at the pharmacy on the following day.

When the plaintiff went to the pharmacy the next day, having been instructed by his employer to do so, he was told that the pharmacy had no record of a prescription for him.

The pharmacy later explained that they “received a voicemail message” about the prescription one hour after the plaintiff had been turned away, but they had no contact information for the plaintiff, who did not return to the pharmacy.

The plaintiff never received his medication.

Two days later, the plaintiff “developed a severe infection that had spread through his body and eventually led to the amputation of both his legs below the knees and the partial amputation of his fingers.” He sued the pharmacy, alleging that they had either received the prescription on the first day and had failed to process it in a timely manner, or that they had a duty to obtain his contact information on the second day and to notify him when the prescription was received.

The pharmacy moved for dismissal of the case, contending that they owed no duty to the plaintiff, whom they characterized as a “potential customer” with whom they had “no prior relationship.” The trial court granted dismissal of the case, and the plaintiff appealed.


The appellate court considered whether there was sufficient evidence of liability to reverse dismissal of the case and to remand the case for further proceedings.

The court reasoned that the plaintiff’s appearance at the pharmacy on the day following his injury was evidence that the employer had been informed by the nurse of the prescription to be picked up at the pharmacy. This evidence supported an interpretation that the prescription could have been transmitted to the pharmacy by the nurse on the day of the injury.

In addition, the court noted that the pharmacy owed a duty of care to the plaintiff because he “believed that a medication would be waiting for him” at the pharmacy. That duty could include investigating the matter further and asking the plaintiff for his contact information. The court ruled that genuine issues of material fact had not yet been resolved.


The ruling in this case is more suggestive than determinative. The pharmacy’s exposure to liability has not yet been established. The cautionary tale of this case is that the court seemed very receptive to the argument that a pharmacy owes a legal duty to a person who believes a prescription has been transmitted to the pharmacy, even if the pharmacy has no prior relationship with that person. Based on this ruling, the prudent step is to thoroughly investigate the possibility that the person’s prescription has been misplaced and to retain the person’s contact information in case the prescription is eventually found. ■



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