Pharmacy Owes Duty To Patient Not To Fill Excessive Prescriptions for Opioids

In light of the magnitude of the prescription opioid overdose epidemic, Florida’s Fifth District Court of Appeal issued an interesting decision with regard to the duty a pharmacy owes to the people whose prescriptions it fills. In the case of Oleckna v. Daytona Discount Pharmacy, 2015 WL 477841 (Fla.App. 5 Dist., February 6, 2015) (not designated for publication), the estate of a man who died from drug intoxication from the combined use of Alprazolam and Hydrocodone sued the pharmacy and its owner, a licensed pharmacist, that filled the man’s prescriptions even though the prescriptions were issued too closely in time before the man should have exhausted the preceding prescription. The trial court dismissed the complaint with prejudice because it held that the pharmacy owed no duty to the man other than properly filling his valid and lawful prescriptions.

prescription-drugs2The appellate court reversed. The court held that the pharmacy owed a duty to the man beyond merely following the prescribing physician’s directions. The court noted that here the pharmacy filled, without question, numerous prescriptions that were so close together that the pharmacy should have been put on notice that the man was getting too many pills within too short a period. An ordinarily prudent pharmacist when presented with prescriptions written in the quantity, frequency, dosage, or combination as alleged in this case would either have checked with the prescribing doctor or warned the patient.

In so holding, the appellate court reviewed the cases considered by the trial court (discussed below): McLeod v. W. S. Merrell Co., Division of Richardson-Merrell, Inc., 174 So.2d 736 (Fla., May 5, 1965), Dee v. Wal-Mart Stores, Inc., 878 So.2d 426, 29 Fla. L. Weekly D1545 (Fla.App. 1 Dist., June 30, 2004), Powers v. Thobhani, 903 So.2d 275, 30 Fla. L. Weekly D1377 (Fla.App. 4 Dist., June 1, 2005), review denied, 934 So.2d 1182 (Fla. Jun 22, 2006), and Estate of Sharp v. Omnicare, Inc., 879 So.2d 34, 29 Fla. L. Weekly D1350 (Fla.App. 5 Dist., June 4, 2004), review dismissed, 992 So.2d 819 (Fla. Sep 08, 2008).

In an action for breach of an implied warranty of fitness or merchantability, McLeod held that a druggist who sells a prescription warrants that he has compounded the drug prescribed, that he has used due and proper care in filling the prescription, that proper methods were used in compounding process and that drug has not been infected with some adulterating foreign substance. The McLeod court did not say what circumstances might give rise to a negligence claim against a pharmacist. However, the Florida Supreme Court did state that a druggist who sells a prescription warrants that (1) the druggist will compound the drug prescribed; (2) the druggist has used due and proper care in filling the prescription (failure of which might also give rise to an action in negligence); (3) the proper methods were used in the compounding process; (4) the drug has not been infected with some adulterating foreign substance.

Dee related McLeod to a negligence claim against a pharmacist. In Dee, Florida’s First District Court of Appeals held that a pharmacy must use due and proper care in filling a prescription, as the Florida Supreme Court stated in McLeod, and when a pharmacy fills a prescription that is unreasonable on its face, even though it is lawful as written, it may breach this duty of care. The appellate court held that the complaint sufficiently stated a claim for negligence where it alleged the prescription for a Duragesic patch, without a time limit for filling or using the prescription, rendered the prescription unreasonable on its face. The court reasoned that a pharmacist viewing a prescription more than four months old would reasonably conclude that the patient was opioid-naïve and should warn the patient of the risk of hypoventilation resulting in death and/or inquire of the physician whether the prescription should be filled for this patient.

Powers again related McLeod to a negligence claim against a pharmacist. In Powers, Florida’s Fourth District Court of Appeals held that the complaint sufficiently stated a claim for negligence where it alleged that the pharmacies filled numerous lawful prescriptions for the woman for narcotic medications too closely in time, within days of having filled previous prescriptions, and that the woman subsequently died as result of combined drug overdose. Relying on Dee and McLeod, the court held that negligence liability can be imposed on a pharmacy for failing to use due and proper care in filling prescriptions, even if the prescription is filled in accordance with the physician’s instructions.

In Oleckna the Fifth District Court of Appeals stated that its earlier decision in Sharp was not controlling. In Sharp a decedent’s estate brought a wrongful death action against a pharmacy service provider for the nursing home where the decedent had resided. The complaint alleged that the pharmacy service provider failed to review the decedent’s drug regimen on a monthly basis, or to account and reconcile the controlled drugs that were to be used by the decedent, or to detect that her medication was not being properly administered or was being stolen, or to train the nursing personnel at the nursing home, or to determine from her records that her drug regime was not effective in the treatment of her medical conditions, or to hire an appropriate pharmacist to oversee the decedent’s medication-taking practices. The Sharp court characterized the complaint as seeking to hold the nursing home’s pharmacists liable for the administration of medications that were provided to the decedent by the nursing home, or that were prescribed by her physicians. The Sharp court held that the pharmacy service provider breached no duty to the decedent.

Interestingly, the Fourth District Court of Appeals and the Fifth District Court of Appeals disagree as to whether Sharp conflicts with Powers. The Fourth District Court of Appeals in Powers expressly stated that its decision conflicted with the Fifth District Court of Appeals’ decision in Sharp. Specifically, the Powers court described Sharp as holding that a negligence action cannot be sustained against a pharmacy based on an alleged failure to review the customer’s drug regimen on a monthly basis, or to account and reconcile the controlled drugs that were to be used by the customer, or to determine from her records that her drug regime was not effective in treating her conditions. The Fifth District Court of Appeals stated in Oleckna that its decision in Sharp did not conflict with Powers. The Fifth District Court of Appeals explained that in Sharp the issue was whether the plaintiff sufficiently alleged a negligence claim against an entity providing consulting pharmacy services to the nursing home in which the decedent resided. It concluded that the consulting pharmacy could not be held liable for duties that were ordinarily owed by a caretaker of the patient or the physician who had the duty to know the drug that the physician was prescribing and to properly monitor the patient.

The Oleckna court went on to distinguish Sharp from Oleckna. The court noted that the prescriptions at issue in Oleckna were alleged to be unreasonable on their face because they were written in a quantity, frequency, dosage, or combination that a reasonable pharmacist would either have checked with the prescribing doctor or warned the patient. However, the court did not state how this differed from the prescriptions at issue in Sharp. The court also noted that in Oleckna the pharmacy interacted directly with the decedent while in Sharp the consultant pharmacy had no interaction with the decedent, but instead, dealt only with the nursing home.

With its decision in Oleckna the Fifth District Court of Appeals seems to be joining the Fourth District Court of Appeals in supporting the imposition of negligence liability on a pharmacy for failing to use due and proper care in filling prescriptions, even if the prescription is filled in accordance with the physician’s instructions, particularly in the context of overprescription of opioids. To the extent this conflicts with other Florida decisions, such as Johnson v. Walgreen Co., 675 So.2d 1036 (Fla.App. 1 Dist., Jul 3, 1996), the issue seems ripe for review by the Florida Supreme Court.

By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.

For more details, see the Scalpel Weekly News, February 16, 2015.

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See also Medical Law Perspectives, January 2014 Report: Prescription Painkillers: Risks for Patients, Pharmacists, and Physicians

See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

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