From pill-counting to patient care: Pharmacists' standard of care in negligence law

Fordham Law Review

Volumn 68, Issue 1, 1999, Pages 165-187

  Fleischer, Lauren ^a  

^a NONE

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ARTICLE; HEALTH CARE DELIVERY; HUMAN; LAW; LEGAL ASPECT; LEGAL LIABILITY; MALPRACTICE; PHARMACY; PROFESSIONAL PRACTICE; STANDARD; UNITED STATES;

DELIVERY OF HEALTH CARE; HUMANS; LEGISLATION, PHARMACY; LIABILITY, LEGAL; MALPRACTICE; PHARMACEUTICAL SERVICES; PROFESSIONAL PRACTICE; UNITED STATES;

EID: 0033205158     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (186)

1. See, e.g., Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 516 (Ind. 1994) (discussing a tort action brought by a pharmacy customer); Guillory v. Dr. X, 679 So. 2d 1004, 1006 (La. Ct. App. 1996) (same); Riff v. Morgan Pharmacy, 508 A.2d 1247, 1248 (Pa. Super. Ct. 1986) (same); Dooley v. Everett, 805 S.W.2d 380, 381 (Tenn. Ct. App. 1990) (same); McKee v. American Home Prods., 782 P.2d 1045, 1047 (Wash. 1989) (same).
2. See infra Part II.B.2.
3. See, e.g., Lasley v. Shrake's Country Club Pharmacy, Inc., 880 P.2d 1129, 1130 (Ariz. Ct. App. 1994) (holding that defendant-pharmacist had a duty to warn either plaintiff or his physician about dangers of prolonged drug use).
4. See Riff, 508 A.2d at 1252 (holding defendant-pharmacist negligent for not clearly indicating the maximum safe dosage on the label when filling migraine medication prescription).
5. See, e.g., Jones v. Irvin, 602 F. Supp. 399, 402 (S.D. Ill. 1985) (explaining plaintiff's argument that defendant-pharmacist should have warned the patient or physician that the prescription called for drugs in dangerous amounts, and that the drug quantities were likely to cause interactions).
6. See, e.g., Hooks, 642 N.E.2d at 519 (holding that defendant-pharmacist had a duty to refuse to fill a prescription that customer was requesting at an unreasonably faster rate than prescribed).
7. See, e.g., Guillory v. Dr. X, 679 So. 2d 1004, 1006 (La. Ct. App. 1996) (finding no duty to warn patient that prescriptions from various treating doctors were contraindicated).
8. See, e.g., Hand v. Krakowski, 453 N.Y.S.2d 121, 123 (App. Div. 1982) (finding a duty to warn alcoholic customer that drug was contraindicated with use of alcohol).
9. See Baker v. Arbor Drugs, Inc., 544 N.W.2d 727, 731 (Mich. Ct. App. 1996) (holding that a pharmacy had a duty to correctly use its computer system that was voluntarily installed and advertised as a safety measure for customers' safety).
10. See, e.g., Roseann B. Termini, The Pharmacist Duty to Warn Revisited: The Changing Role of Pharmacy in Health Care and the Resultant Impact on the Obligation of a Pharmacist to Warn, 24 Ohio N.U. L. Rev. 551, 565 (1998) ("Courts remain reluctant to impose a legal duty on a pharmacist to provide unsolicited information to patients.") (footnote omitted).
11. See Marc A. Franklin & Robert L. Rabin, Tort Law and Alternatives 389 (5th ed. 1992) (noting the flood of comparative negligence legislation as part of the "growing unhappiness with the harshness of contributory negligence").
12. See id.
13. See, e.g., Li v. Yellow Cab Co., 532 P.2d 1226, 1244 (Cal. 1975) (replacing the common law defense of contributory negligence with comparative negligence).
14. See, e.g., Escola v. Coca Cola Bottling Co., 150 P.2d 436, 443 (Cal. 1944) (Traynor, J., concurring) (observing that the consumer's "vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices").
15. See Bill Hotopp, Hook's SuperX, Inc. v. McLaughlin: Pharmacists' Duty Toward Their Patients, 6 J. Pharmacy & L. 35, 40 (1996).
16. Clerical accuracy refers to technical precision in filling the prescription. See infra note 23 and accompanying text.
17. See infra Part II.B.2.
18. See Jones v. Irvin, 602 F. Supp 399, 402 (S.D. Ill. 1985) (holding that a pharmacist has no duty to warn the customer or notify the physician that the customer is receiving dangerous amounts of the prescribed drug). But see Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 519 (Ind. 1994) (imposing a duty on a pharmacist to cease refilling prescription for customers seeking refills at an unreasonably fast rate).
19. See infra Part H.A.
20. See, e.g., Hotopp, supra note 15, at 41 (charging the physician alone with the duty to prescribe, authorize and monitor drug use, and refuting any independence of the pharmacist-customer relationship from that of the physician).
21. This is the rationale behind the "learned intermediary doctrine." Originally developed as a defense for drug manufacturers, the doctrine obligates only the physician to warn patients about potential side effects associated with drug therapy. See Reyes v. Wyeth Lab., 498 F.2d 1264, 1276 (5th Cir. 1974); Presto v. Sandoz Pharms. Co., 487 S.E.2d 70, 73 (Ga. Ct. App. 1997).
22. See Kirk v. Michael Reese Hosp. & Med. Ctr., 513 N.E.2d 387, 395 (Ill. 1987) (adopting the learned-intermediary doctrine as a bar to claims against a pharmacist for failure to warn customers).
23. See Alison G. Myhra, The Pharmacist's Duty to Warn in Texas, 18 Rev. Litig. 27, 30 (1999) (discussing the "no mistakes allowed" approach of traditional pharmacy).
24. See id. at 34; David B. Brushwood, The Professional Capabilities and Legal Responsibilities of Pharmacists: Should "Can" Imply "Ought"? 44 Drake L. Rev. 439, 444-45 (1996) [hereinafter Brushwood, Professional Capabilities].
25. See id. at 34; David B. Brushwood, The Professional Capabilities and Legal Responsibilities of Pharmacists: Should "Can" Imply "Ought"? 44 Drake L. Rev. 439, 444-45 (1996) [hereinafter Brushwood, Professional Capabilities].
26. See Code of Ethics, 13 J. Am. Pharm. Ass'n Practical Pharmacy Ed. 722 (1952) (cited in David B. Brushwood, The Pharmacist's Duty to Warn: Toward a Knowledge- Based Model of Professional Responsibility, 40 Drake L. Rev. 1, 17 n.74 (1991) [hereinafter Brushwood, Knowledge-Based Model]).
27. See Code of Ethics, 13 J. Am. Pharm. Ass'n Practical Pharmacy Ed. 722 (1952) (cited in David B. Brushwood, The Pharmacist's Duty to Warn: Toward a Knowledge-Based Model of Professional Responsibility, 40 Drake L. Rev. 1, 17 n.74 (1991) [hereinafter Brushwood, Knowledge-Based Model]).
28. See id.
29. See infra Part II.B.2.
30. See Paul Hochman, The Real Power in Health Care: WHY DRUG COMPANIES FEAR AND LOATHE PHARMACISTS, Fortune, Mar. 29, 1999, at 46.
31. See id. (quoting Bill Fitzpatrick, Corporate Compliance Officer at pharmacy-operator Omnicare).
32. See McKee v. American Home Prods., 782 P.2d 1045, 1052 (Wash. 1989). To support her claim, the plaintiff in McKee cited a Washington statute as evidence of a statutory duty to warn plaintiff about the dangerous propensities of prescribed drugs. See id. (citing Wash. Rev. Code § 18.64.011(11) (West 1989)). The statute defines the practice of pharmacy as including: monitoring of drug therapy and use; modifying drug therapy; and providing information on drugs, such as advising of therapeutic values and hazards. See id. at 1051-52. The court observed that the statute is definitional rather than prescriptive, and read it in conjunction with another statute that states that "monitoring drug therapy" includes measuring patient vital signs and ordering diagnostic tests. See id. at 1052 n.6 (citing Wash. Admin. Code § 360-12-150 (1987)). Because the court determined that the latter provision applied only to pharmacists employed in institutional settings and not to neighborhood pharmacists, it rejected the plaintiff's claim that the statute obligated the defendant-pharmacist to warn her about long-term effects of her prescription. See id. at 1052.
33. See Hochman, supra note 28.
34. See id.
35. See Ominbus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, 104 Stat. 1388-151 (codified as amended at 42 U.S.C. § 1396r-8(g) (1994)).
36. See Tara L. Furnish, Departing from the Traditional No Duty to Warn: A New Trend for Pharmacy Malpractice?, 21 Am. J. Trial Advoc. 199, 199 (1997).
37. See 42 U.S.C. § 1396r-8(g)(2)(A)(ii).
38. See id. § 1396r-8(g)(1)(A).
39. See Patient Counseling Requirements: A State-by-State Compilation of Statutory and Regulatory Provisions Enacted in Response to the Mandates of the Omnibus Budget Reconciliation Act of 1990 (National Association of Boards of Pharmacy, Chicago 1993) (cited in David B. Brushwood, The Pharmacist's Duty Under OBRA-90 Standards, 18 J. Legal Med. 475, 485 n.44 (1997) [hereinafter Brushwood, Duty Under OBRA-90]).
40. See, e.g., Richard M. Eldridge & Michael F. Smith, Baker v. Arbor Drugs, Inc.: Pharmacists Beware of Voluntarily Assuming the Duty to Protect Against Harmful Drug Interactions, 14 J. Contemp. Health L. & Pol'y 41, 41, 50 (1997).
41. See id. Contraindication is a condition that makes unadvisable a particular treatment.
42. Baker v. Arbor Drugs, Inc., 544 N.W.2d 727, 731 n.1 (Mich. 1997) (providing examples of pharmacy advertisements regarding customer services). The advertisement is clearly intended to attract customers. When one considers statistics such as the 3000 independent pharmacies that went out of business over two years because of their inability to compete with larger pharmacies, these advertisements do not necessarily illustrate that all pharmacists believe that their professional purview should include checking prescriptions for interaction. See Eldridge & Smith, supra note 38, at 41 (citing Susan Headden et al., Danger at the Drug Store, U.S. News & World Report, Aug. 26, 1996, at 46, 49). Perhaps pharmacists feel compelled to offer such services in order to compete for customers. Nevertheless, the advertisements evidence confidence that pharmacists can protect customers from avoidable interactions.
43. See David W. Hepplewhite, A Traditional Legal Analysis of the Roles and Duties of Pharmacists, 44 Drake L. Rev. 519, 530 (1996).
44. See generally Samuel H. Kalman & John F. Schlegel, Standards of Practice for the Profession of Pharmacy, 19 Am. Pharmacy 22 (1979) (discussing the compilation of the Standards).
45. See Kalman & Schlegel, supra note 41, at 22.
46. See id.
47. See id. at Responsibility No. 8(2), (6), & (7).
48. Other industry representatives nave advanced similar but possibly more stringent counseling standards, arguing that the pharmacist must warn the patient if he knows of a risk that is "reasonably foreseeable" to the patient. See Brushwood, Knowledge-Based Model, supra note 25, at 11-12.
49. See Kalman & Schlegel, supra note 41, § 3, at Responsibility Nos. 4 & 6(3).
50. See id. at Responsibility No. 4(5).
51. See id. at Responsibility No. 6(5). Responsibility No. 13 encourages the pharmacist to communicate alternate treatment plans to the physician after evaluating the patient's data base. The Standards also include this task as an "Activity Related to Processing the Prescription." See id. § 2, at Responsibility No. 3.
52. See supra notes 20-26 and accompanying text.
53. See Brushwood, Knowledge-Based Model, supra note 25, at 16 (observing that "[p]harmacists differ from most other nonphysician health care providers who act under physicians' orders, such as nurses and various therapists, because pharmacists have an independent practice not institutionally tied to the physician").
54. See infra Part II.B.2.
55. See W. Page Keeton et al., Prosser & Keaton on the Law of Torts § 53, at 356 (5th ed. 1984).
56. See, e.g., Geoffrey C. Hazard, Jr. et al., The Law and Ethics of Lawyering 175 (2d ed. 1994) (defining the first element of legal malpractice as "[a] duty of care arising from an attorney-client relationship or . . . some other showing . . . that a substantial purpose of the attorney-client relationship was to influence or benefit the plaintiff" (footnote omitted)).
57. See Oliver Wendell Homes, Jr., The Common Law 108-10 (1881) (noting that the law recognizes one standard of care owed by all, irrespective of temperament, intellect, and education); Fowler Harper et al., The Law of Torts 389-90 (2d ed. 1986) (defining standard of care as conduct at least as cautious as that exercised by a reasonably prudent person).
58. See Oliver Wendell Homes, Jr., The Common Law 108-10 (1881) (noting that the law recognizes one standard of care owed by all, irrespective of temperament, intellect, and education); Fowler Harper et al., The Law of Torts 389-90 (2d ed. 1986) (defining standard of care as conduct at least as cautious as that exercised by a reasonably prudent person).
59. See Hazard, supra note 54, at 175.
60. Lucas v. Hamm, 364 P.2d 685, 689 (Cal. 1961). The Lucas court affirmed the dismissal of a complaint alleging that a lawyer caused plaintiff to lose $75,000 of an inheritance because the lawyer misinterpreted the rule against perpetuities. See id. at 686-87. The court stated that "it would not be proper" to hold the defendant liable because the rule was so confusing and difficult. The lawyer could not be liable for every mistake or for erring on a judgment on which other lawyers would entertain reasonable doubt. See id. at 689.
61. See The T.J. Hooper v. Northern Barge Corp., 60 F.2d 737, 739 (2d Cir. 1932) (noting that while evidence of custom is persuasive, "there are precautions so imperative that even their universal disregard will not excuse their omission").
62. See Hazard, supra note 54, at 187.
63. See Robbins v. Footer, 553 F.2d 123, 126 (D.C. Cir. 1977) (defining applicable standard of care for an obstetrician).
64. See id.
65. See generally Michael J. Polelle, Who's on First, and What's a Professional?, 33 U.S.F. L. Rev. 205, 207 (1999) (opining that courts should preserve the privileges of professional malpractice by restricting its availability to professions that "govern themselves as fiduciaries of their clients").
66. See, e.g., Pierce v. AALL Ins., 531 So. 2d 84, 87 (Fla. 1988) (finding that a "professional" may be determined by a four-year college degree).
67. See, e.g., Harrell v. Lusk, 439 S.E.2d 896, 898 (Ga. 1994) (requiring plaintiff to attach expert affidavit to complaint in professional negligence action against pharmacist).
68. See, e.g., Matthews v. Walker, 296 N.E.2d 569, 571-72 (Ohio Ct. App. 1973) (finding that a podiatrist has the independent-medical-discretion characteristic of a professional, but that a nurse does not).
69. See Polelle, supra note 62, at 212.
70. See id. at 228-29.
71. See Rossell v. Volkswagen of Am., 709 P.2d 517, 522 (Ariz. 1985) (en banc).
72. See, e.g., Alison G. Myhra, The Pharmacist's Duty to Warn in Texas, 18 Rev. Litig. 27, 33 (1999) (defining accuracy as the "bedrock function" of pharmacists).
73. See, e.g., People's Serv. Drug Stores, Inc. v. Somerville, 158 A. 12, 13-14 (Md. 1932) (holding pharmacist to these duties only); see also Brushwood, Duty Under OBRA-90, supra note 37, at 475 (noting that the traditional role of the pharmacist has been limited to providing the customer with the right drug, in the proper strength, with accurate directions for use).
74. See, e.g., Tremblay v. Kimball, 77 A. 405, 408-09 (Me. 1910) (affirming a jury verdict against a druggist for dispensing an incorrect drug, even though defendant argued that the mistake occurred because someone put the wrong pills in the storage unit, and that he properly filled the prescription from this source without knowing of the mistake).
75. The medical term "compounding" denotes the preparation of "[a] substance composed of two or more units or parts combined in definite proportions by weight and having specific properties of its own." Taber's Cyclopedic Medical Dictionary 430 (17th ed. 1993).
76. See McLeod v. W.S. Merrell Co., Div. of Richardson-Merrell, Inc., 174 So. 2d 736, 739 (Fla. 1965); see also Adkins v. Mong, 425 N.W.2d 151, 154 (Mich. Ct. App. 1998) (dismissing claim for failure to warn about addictive side effects); Batiste v. American Home Prods., 231 S.E.2d 269, 275 (N.C. Ct. App. 1977) (rejecting the claim that a pharmacist is liable for injuries in absence of actual knowledge of risk to customer).
77. See Batiste, 231 S.E.2d at 274.
78. See id. at 275.
79. See Furnish, supra note 34, at 199.
80. See Keeton et al., supra note 53, § 56, at 373 (noting that the term "misfeasance" characterizes a defendant's action that creates a new risk to the plaintiff, while "nonfeasance" means that he has left the plaintiff no worse off, but has only failed to benefit him by the defendant's interference).
81. See Burke v. Bean, 363 S.W.2d 366, 368 (Tex. Civ. App. 1962) (observing that a customer, who is generally ignorant about medicines, rightfully relies on the druggist, who holds himself out as having the particular knowledge, skill, and license to fill prescriptions).
82. See, e.g., Taugher v. Ling, 187 N.E. 19, 21 (Ohio 1933) (recognizing the common law liability of a druggist who, in error, sells a harmful drug in place of the one a physician prescribed).
83. See, e.g., Tremblay v. Kimball, 77 A. 405, 409 (Me. 1910) (holding a pharmacist who supplied a drug different than that prescribed liable).
84. Actions based on nonfeasance have typically required some special relationship between the parties, not merely a claim that the defendant could have, but did not, take action to protect the plaintiff from an injury foreseeable to defendant. See Harper v. Herman, 499 N.W.2d 472, 474 (Minn. 1993).
85. See infra notes 90-117 and accompanying text.
86. See, e.g., Jones v. Irvin, 602 F. Supp. 399, 402 (S.D. Ill. 1985) (rejecting plaintiff's claim that common law imposed a duty to warn customers about prescriptions in excessive amounts, dosages, or possible contraindications).
87. See Batiste v. American Home Prods., 231 S.E.2d 269, 274 (N.C. Ct. App. 1977).
88. See Eldridge v. Eli Lilly & Co., 485 N.E.2d 551, 552-53 (Ill. App. Ct. 1985).
89. See, e.g., Jones, 602 F. Supp. 399, at 402 (holding that a pharmacist has no duty to warn a customer of dangerous medications); Pysz v. Henry's Drug Store, 457 So. 2d 561 (Fla. Dist. Ct. 1984) (finding that pharmacist's failure to warn patient of addictive propensities of drug did not constitute negligence); Batiste, 231 S.E.2d at 269 (holding that a pharmacist is neither qualified nor licensed to advise customer).
90. See supra notes 71, 73 and accompanying text.
91. 231 S.E.2d 269, 274 (N.C. Ct. App. 1977).
92. 457 So. 2d 561 (Fla. Dist. Ct. App. 1984).
93. Id. at 561-62. The appellate court affirmed the trial court's dismissal of the claim despite serious factual allegations. See id. at 561. Steve Pysz received prescribed Quaaludes for over nine years from the same pharmacist. See id. He claimed that the defendant-pharmacist should have warned him of the addictive propensities of the drug because defendant knew that using the drug for such a period of time would result in addiction. See id. He further alleged that the defendant in fact knew that he had become addicted to the drug and continued to fill the prescription without taking any corrective measures. See id. On appeal, Pysz argued that the trial court erred by ignoring how drastically the pharmaceutical business had changed in the preceding twenty years and that a pharmacist has greater knowledge than the physician of the dangerous propensities of drugs. See id. at 562.
94. See id.
95. 602 F. Supp 399, 402-03 (S.D. Ill. 1985).
96. See id. at 400 (dismissing claim of personal injuries and loss of consortium as a result of excessive drug consumption). Georgia also adopted this rule in Walker v. Jack Eckerd Corp., 434 S.E.2d 63, 67 (Ga. Ct. App. 1993). The Walker court observed that Georgia's common law does not recognize malpractice in the absence of a physician-patient relationship. See id. at 69.
97. Jones, 602 F. Supp. at 401 (citing Pysz v. Henry's Drug Store, 457 So. 2d 561 (Fla. Dist. Ct. App. 1984)).
98. See id. at 401-02.
99. See id. at 402.
100. See id.
101. See id. The court also addressed the duty of the drug manufacturer, which is satisfied when the manufacturer notifies the physician of potential side effects or precautions associated with the drug's use. See id.
102. See id.
103. See id. at 401-03.
104. See id. at 400. But see Hand v. Krakowski, 453 N.Y.S.2d 121, 123 (App. Div. 1982) (holding that a druggist may be liable for failing to warn a customer of the possible side effects from mixing a drug with alcohol when the druggist knows that the customer is an alcoholic).
105. See Jones, 602 F. Supp. at 400. But see Fuhs v. Barber, 36 P.2d 962, 964 (Kan. 1934) (finding a duty to warn a customer of side effects from mixing prescription and nonprescription drugs when the druggist recommended use of the nonprescription drug).
106. See Jones, 602 F. Supp. at 400. But see Jones v. Walgreen Co., 265 Ill. App. 308, 321-22 (1932) (holding a pharmacist liable for filling a prescription with a drug other than the one prescribed because he could not read the prescription).
107. See Jones, 602 F. Supp. at 402-03 (quoting Jones, 265 Ill. App. at 315).
108. The court noted that had Ms. Jones alleged that the pharmacist was negligent in filling the prescription by using the wrong drug, or by giving the wrong directions, she clearly would have had a claim. See id. at 400. The court stated that its holding was limited to the facts of the case, which did not include "side reactions, over dependence, misuse, or restrictions on use, associated with non-prescribed drugs he dispenses." See id. at 403.
109. See supra note 23 and accompanying text.
110. See, e.g., Frye v. Medicare-Glaser Corp., 605 N.E.2d 557, 560 (Ill. 1992) (holding that a pharmacist's duty to warn must comport with the level of services he voluntarily undertakes to provide); Baker v. Arbor Drugs, Inc., 544 N.W.2d 727, 731 (Mich. Ct. App. 1996) (finding that a pharmacist who uses computer technology to warn customers voluntarily assumes a duty of care to do so without error).
111. 605 N.E.2d 557 (Ill. 1992).
112. See id. at 560-61. The plaintiff in Frye claimed that the pharmacist should have warned his customer about the dangerous interaction between Fiorinal, the drug prescribed, and alcohol consumption. The interaction between them caused the customer's death. See id. at 558.
113. See id. at 560. The defendant pharmacy had a computer program that provided general warnings about the drugs dispensed, and in this case, the computer did issue a warning about alcohol consumption. See id. at 558-59. The pharmacist testified that she purposefully omitted the warning from the label because "it offended so many people that [she] would think that they might drink." Id. at 559. Thus, the pharmacist had discretion as to what warnings to include or omit. See id.
114. See id. at 560-61 (stating that if the defendant had instead given a completely inaccurate warning, and had the customer followed the instruction, the pharmacist would be liable for the customer's injury resulting from his negligent voluntary undertaking). The court noted that potential warnings for use of the drug included everything from flatulence to adverse effects during pregnancy. Therefore, customers should rely on the prescribing physician for appropriate warnings. See id. at 561.
115. 485 N.E.2d 551 (Ill. App. Ct. 1985).
116. See id. at 554-55. The court dismissed the plaintiff's claim that Brown Drug & Company negligently filled a prescription for Darvon, from which the decedent overdosed. See id. at 552, 555. The plaintiff argued that the pharmacist should have warned the physician that the prescription presented a risk to his patient or refused to fill the prescription. See id. at 552.
117. See id. at 553.
118. See id.
119. See id.
120. See id. at 552-53.
121. See, e.g., Jones v. Irvin, 602 F. Supp. 399, 402 (S.D. Ill. 1985) (noting the importance of preserving the patient-physician relationship from interference by the pharmacist); Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 517-18 (Ind. 1994) (holding that imposition of a duty to refuse to fill a valid prescription is warranted because the pharmacist-customer relationship already gives rise to a duty, the injury was foreseeable, and public policy favors corrective action that prevents drug abuse).
122. See Jones, 602 F. Supp. at 402; Hooks, 642 N.E.2d at 518.
123. See Hooks, 642 N.E.2d at 517-18.
124. See id. at 519.
125. See Riff v. Morgan Pharmacy, 508 A.2d 1247, 1248 (Pa. Super. Ct. 1986) (holding a pharmacist liable for dispensing a dangerous prescription drug with incomplete directions); infra Part II.B.2.a.
126. See Hooks, 642 N.E.2d at 519; infra Part II.B.2.b.
127. See Lasley v. Shrake's Country Club Pharmacy, Inc., 880 P.2d 1129, 1130 (Ariz. Ct. App. 1994); Dooley v. Everett, 805 S.W.2d 380, 386 (Tenn. Ct. App. 1990); infra Part II.B.2.c.
128. See, e.g., Riff, 508 A.2d at 1248 (holding a pharmacist liable for dispensing a medication with incomplete directions); McKee v. American Home Prods., 782 P.2d 1045, 1052 (Wash. 1989) (en banc) (observing that a pharmacist has a duty to be alert for, and to take corrective measures to prevent, patent errors in a prescription).
129. See McKee, 782 P.2d at 1053. The plaintiff in McKee did not allege that she was injured by a prescription containing such a patent error and the court decided against her summarily. See id. at 1055-56. The McKee court nevertheless used the case to set the rule in Washington that a pharmacist has a duty to protect his customers from patent errors. See id. at 1053.
130. 508 A.2d 1247 (Pa. Super Ct. 1986).
131. See Riff, 508 A.2d at 1252. The plaintiff suffered serious and permanent leg injuries from over-use of a migraine suppository prescription. See id. at 1249. The physician and pharmacist provided inadequate directions because they did not alert plaintiff to the safe maximum dose. See id. at 1252-53.
132. See id. at 1252.
133. See id.
134. See id. at 1250-51
135. See id. at 1253-54 ("If the consensus of the medical community is that a safety net of overlapping responsibilities is necessary to serve the best interests of patients, it is not for the judiciary to dismantle the safety net and leave patients at the peril of one man's human frailty.").
136. 782 P.2d 1045 (Wash. 1989) (en banc).
137. See id. at 1055-56.
138. See id. at 1053.
139. Id. (emphasis in original) (footnotes omitted).
140. See id. at 1056. Elaine McKee alleged that her pharmacist had a duty to warn her about the adverse side effects of long-term use of a prescription drug when that pharmacist filled the prescription for ten years. See id. at 1046.
141. 628 So. 2d 256 (La. Ct. App. 1993) (holding that "a pharmacist has a limited duty to inquire or verify from the prescribing physician clear errors or mistakes in the prescription").
142. 679 So. 2d 1004, 1010 (La. Ct. App. 1996).
143. See id.
144. See id. Ms. Guillory's complaint alleged that the defendant provided her deceased husband with dangerous quantities and combinations of drugs, but not that the prescription contained excessive dosages or obvious errors. See id. 142. 642 N.E.2d 514 (Ind. 1994).
145. See id. at 518. Plaintiff McLaughlin became addicted to propoxyphene, the active chemical in Darvocet, after taking the drug for more than five years. See id. at 516. He was treated for addiction three times during that period and finally attempted suicide. See id. McLaughlin, his wife, and family sued the pharmacy for injuries resulting from the attempt, alleging that the pharmacist should not have continued to fill the prescription. See id. 144. See id. at 517-18.
146. See id. at 517.
147. See id.
148. See id.
149. See id.
150. See id. at 518.
151. See id. at 519.
152. See id.
153. See id.
154. Id.
155. See id.
156. See, e.g., Brushwood, Knowledge-Based Model, supra note 25, at 4 (presenting four articles that criticize judicial reluctance to expand pharmacists' duties, in spite of his own assertion that "legal developments should reflect changes in professional practice, not create them").
157. See, e.g., Myhra, supra note 23, at 82 (opining that "the common law has been slow to recognize the expertise of pharmacists").
158. Compare Brushwood, Duty Under OBRA-90, supra note 37, at 509 (recommending that courts consider the federal OBRA-90 as a minimum standard of pharmacy practice for purposes of negligence actions, but opining that the documentation requirement is unrealistic because pharmacists currently lack the technological support to create and maintain comprehensive medical records) and Brushwood, Knowledge-Based Model, supra note 25, at 60 (observing that some day pharmacists will practice without being limited by physician predominance, but "that day has not yet arrived"); with Myhra, supra note 23, at 33, 83 (suggesting that current state and federal statutes may compel Texas courts to apply a standard of care that includes an obligation to warn customers about potential risks associated with drug therapy).
159. See Brushwood, Professional Capabilities, supra note 24, at 448.
160. See id.
161. See Brushwood, Duty under OBRA-90, supra note 37, at 476.
162. See 42 U.S.C. § 1396r-8(g) (1994); Brushwood, Duty under OBRA-90, supra note 37, at 476.
163. See 42 U.S.C. § 1396r-8(g) (1994); Brushwood, Duty under OBRA-90, supra note 37, at 476.
164. See Brushwood, Duty under OBRA-90, supra note 37, at 485-86. The main proponent of this approach does not encourage courts to impose a requirement with respect to documentation of patient records, as he observes that this standard does "not yet reflect the reality of the contemporary pharmacy workplace." Id. at 509.
165. See Brushwood, Duty under OBRA-90, supra note 37, at 485-86. The main proponent of this approach does not encourage courts to impose a requirement with respect to documentation of patient records, as he observes that this standard does "not yet reflect the reality of the contemporary pharmacy workplace." Id. at 509.
166. See id. at 485.
167. See Sheryl Gay Stolberg, The Boom in Medications Brings Rise in Fatal Risks, N.Y. Times, June 3, 1999, at A1 (observing that mistakes in the practice of pharmacy occur because pharmacists are extremely overworked, as their profits depend on the quantity of prescriptions dispensed).
168. See, e.g., Keeton et al., supra note 53, at 356 (defining "duty" in terms of "the relation between individuals which imposes upon one a legal obligation for the benefit of the other," and specifically, to & particular plaintiff).
169. See id.
170. See id.
171. See Polelle, supra note 62, at 206 & nn. 6-7.
172. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
173. See id.
174. See Conway v. O'Brien, 111 F.2d 611, 612 (2d Cir. 1940).
175. See Carroll Towing, 159 F.2d at 171.
176. See People's Serv. Drug Stores, Inc. v. Somerville, 158 A. 12, 14 (Md. 1932). This decision, however, warns against the possible injury a pharmacist could cause to multiple customers if he refused to fill prescriptions calling for "unusual remedies." Id. at 13.
177. For a discussion of the traditional role of pharmacists' liability, see supra notes 20-26 and accompanying text.
178. See supra notes 20-26.
179. The similarity of the standards applied would be limited by the locality rule, which requires that the testimony used to determine a professional's standard of care come from an expert practicing in the same region. See Polelle, supra note 62, at 206.
180. See Lasley v. Shrake's Country Club Pharmacy, Inc., 880 P.2d 1129, 1132 (Ariz. Ct. App. 1994); Dooley v. Everett, 805 S.W.2d 380, 384 (Tenn. Ct. App. 1990).
181. 880 P.2d 1129 (Ariz. Ct. App. 1994).
182. See id. at 1132-34. The plaintiff alleged that the pharmacist owed him a duty to warn either the customer or his physician about the dangers of long-term use of the prescribed drug in combination with other drugs. See id. at 1131.
183. See id. at 1132.
184. See id. The court reversed the trial court's award of summary judgment to the defendant, noting that the trial court improperly refused to consider excerpts from the American Pharmaceutical Association Standards of Practice. See id. at 1134.
185. See supra Part II.
186. See Kalman & Schlegel, supra note 41.