Fifth District Court of Appeal Reverses in Negligent Prescribing Case

photo_2916_20070819When negligence regarding the administration of medication is mentioned, most people would typically think of doctors or nurses. However, other medical professionals may be liable for negligence related to the prescribing of medicine. In fact, Florida’s Fifth District of Appeal recently rendered judgment in an interesting case involving a pharmacist’s liability for the death of one of his customers.

The decision, Oleckna v. Daytona Discount Pharmacy, relates to the treatment of a now deceased patient for stress syndrome. The patient began his treatment in 2009 and received a prescription for Xanax and Hydrocodone or Oxycodone from a local physician. Over the next two years, the physician repeatedly prescribed these drugs before the date that the patient should have depleted his previous prescription. The defendant in this case, a local pharmacy, filled at least thirty of these prescriptions, even though they were prescribed closely in time. In March of 2011, the patient died due to drug intoxication of Alprazolam and Hydrocodone. The estate of the deceased brought suit against the pharmacy, alleging the pharmacy was liable for various forms of negligence associated with filling the deceased’s prescriptions. The pharmacy moved to dismiss, arguing that it could not be held liable for negligence under the circumstances. The trial court granted the motion, and the estate appealed.

The key issue before the Fifth District Court of Appeal was the scope of the legal duty a pharmacist owes to those whom he or she dispenses prescriptions. Generally, pharmacists are subject to a duty of reasonable care, meaning that they are expected to possess and exercise at all times during the execution of their occupation the degree of skill, care, and knowledge that would be exercised by reasonably prudent pharmacist in the same situation. However, a 1965 decision from the Supreme Court of Florida created some confusion. That decision, McLeod v. W. S. Merrell Co., Division of Richardson-Merrell, Inc., held that a pharmacy could not be held strictly liable to its customers under a breach of warranty theory. 174 So. 2d 736, 739 (Fla. 1965). The court noted that a pharmacist could be held liable for negligence, but didn’t clarify under what circumstances a pharmacist could be found negligent.

Though guidance was limited, courts have permitted suits against pharmacists for negligence in circumstances such as those presented in this case. For instance, in Dee v. Wal-Mart Stores, Inc., the First District Court of Appeal held that a pharmacist could be found negligent for continuing to prescribe a potent painkiller even though the prescription didn’t have a time limit because continuing to prescribe the medication created an obvious risk of a customer’s death absent a particular drug regime. 878 So. 2d 426, 427-28 (Fla. 1st DCA 2004). Accordingly, continuing to prescribe the drug displayed a lack of due care under the circumstances. Id. at 427. Similarly, in Powers v. Thobani, the Fourth District Court of Appeal held that pharmacists who continually prescribed medications when the prescriptions were obviously being filled too closely in time could be found negligent because the duty of reasonable care owed when filing a prescription extends beyond simply following a physician’s instructions.

The Fifth Circuit, however, needed to consider whether liability under these circumstances conflicted with its prior holding in Estate of Sharp v. Omnicare, Inc., 879 So. 2d 34, 35 (Fla. 5th DCA 2004). In that case, the Fifth District held that a pharmacist could not have been found liable for harm to a nursing home patient’s injuries resulting from prescription drugs procured from the pharmacy. The Fifth District found that the case was distinguishable for two reasons. First, the pharmacy in the case was a consultant pharmacy that didn’t directly deal with the patient but rather with the nursing home. Second, the prescription at issue here was unreasonable on its face and, thus, a reasonable physician would have either checked with the physician or warned the patient. Accordingly, a pharmacist’s legal duty isn’t limited to solely complying to a physician instructions, and the trial court erred in dismissing the case as foreclosed under Sharp.

Even if a pharmacist couldn’t be found liable when it follows a physician instruction, the physician who wrote the prescription could be found liable under these circumstances. Indeed, negligent conduct can involve many parties, and one considering bringing action for harm he or she has incurred as a result of possibly negligent conduct should consider enlisting the aid of an attorney with experience discerning all possible culpable parties. The South Florida medical negligence attorneys at Frankl & Kominsky have represented numerous patients in both state and federal court and can provide the assistance you may need with your possible claim. Feel free to contact us for a case consultation if you would like to hear more about the options you have.

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