Can pharmacists be sued for doing their jobs?

Ken BakerI was talking with Don McGuire, BS Pharm, JD, when he brought up a question he received from a pharmacist. Don is general counsel and senior vice president of Risk Management with Pharmacists Mutual Insurance Company, so he gets many questions about legal liability. This question was particularly interesting, because it encompassed changes in pharmacists’ standards of care that have occurred over the last few decades. 

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A generation ago

A generation ago, a short time in the study of a profession’s legal standards of practice, if a pharmacist filled a prescription correctly - meaning that it contained the right drug, had the right directions on the label, and was delivered to the right patient - the pharmacist generally would not be liable for injuries to the patient caused by the drug. 

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In 1993 an Illinois court, finding that the pharmacist had no duty to warn in the case of a patient who died as a result of an overdose of imipramine, said, “To impose a duty to warn on the pharmacist would be to place the pharmacist in the middle of the doctor-patient relationship, without the physician’s knowledge of the patient.”¹

In a similar circumstance, an earlier court noted, “Such a duty would compel the pharmacist to “second-guess every prescription a doctor orders in an attempt to escape liability.”²

These courts perhaps did not understand the pharmacist’s expertise and direct duty to the patient.

Changing times

While today, courts have been reluctant to find a generalized duty to warn in all cases, they have found more exceptions.³

A pharmacist is likely to be held to a higher standard when it comes to warning a patient or physician of contraindications, allergies, overdoses, and other conditions connected with medications.³

Today courts are finding more pharmacists liable of more professional duties.³

Increased liability

The question asked of Mr. McGuire was, “If I make a specific recommendation to a physician of the drug to be used in a particular case, am I increasing my liability?”

The answer is yes.

The more duties we take on and the more specific our recommendations and advice, the more we may be held liable if our advice is wrong. 

Legal duty may be imposed by law, or by court decision, or by community standards. Duty may also be taken on by a volunteer who assumes a duty.⁴

The real question

The real question is, are there times that we as pharmacists should assume professional duties, such as when a physician asks for professional knowledge, experience, and training? Pharmacists are the foremost experts in drugs. What good is that expertise if we are unwilling to use it to benefit a colleague or a patient? 

The Pharmacists’ Code of Ethics directs that a pharmacist, as part of a covenantal relationship, promises to help patients get the most from their medications, to be committed to the patients’ welfare, and to maintain their trust.⁵

Such an obligation may include using that knowledge, experience, and training for the benefit of the patient, including helping physicians to make critical decisions involving risk assessment.

In essence, the question to Mr. McGuire was: If I do my job, might I get sued?

The answer is yes. 

Protections

As we do our jobs, there are ways we can protect ourselves.

First, we can make sure we give professional advice only in those areas in which we are competent. We can follow the ethical principal that a pharmacist has a duty to maintain knowledge and abilities.⁵

Second, when we give advice, we can document what we said and under what circumstances. 

Third, we can maintain our professional liability insurance, both commercial and individual.

What we cannot do is shirk our duty as professionals.

References

1. Fakhouri v. Taylor, 248 Ill.App.3d 328, 332–33, 187 Ill.Dec. 927, 618 N.E.2d 518 (1993).

2. Jones v. Irvin, 602 F.Supp. 399 (S.D.Ill.1985)

3. See, as example: Deed v. Walgreen Co., 50 Conn.Supp. 339 (2007); Morgan v. Wal–Mart Stores, 30 S.W.3d 455, 466 (Tex.App.2000); Riff v. Morgan Pharmacy, 353 Pa.Super. 21, 508 A.2d 1247 (1986) (obvious errors on face of prescription); Dooley v. Everett, 805 S.W.2d 380 (Tenn.Ct.App.1990) (incompatible prescriptions).

4. Rite Aid Corp. v. Levy-Gray, 391 Md. 608 (2006).

5. See https://www.ashp.org/DocLibrary/BestPractices/EthicsEndCode.aspx. Accessed 1/10/2016.