COMMUNITY PRACTICE

Florida judge rules on pharmacist duty to warn

A Florida judge has hammered another nail in the coffin of the legal doctrine that pharmacists have no duty beyond accurately filling prescriptions.

As healthcare professionals, Florida pharmacists have a duty to exercise the care and prudence that a reasonably careful and prudent pharmacist would exercise, according to Palm Beach County Circuit Court Judge David F. Crow. His ruling came in a recent order rejecting a defense motion to dismiss a lawsuit stemming from the death of a 30-year-old man allegedly due to an accidental overdose of prescription drugs in December 2000. The judge did not rule on whether the pharmacists breached their duty and, if so, whether such a breach was the cause of the plaintiff's injury.

The lawsuit charges that the defendant pharmacy's pharmacists filled excessive hydrocodone and alprazolam Rxs for Shawn Keisshauer and that the excessive scripts were the proximate cause of his death, said Barry Dubinsky, the Coral Springs attorney representing the victim's estate. He has asked that a trial date be set and is conducting discovery.

Keisshauer had been taking the medications for pain stemming from work- and automobile accident- related injuries before his death, Dubinsky said. Also named in the suit is the internist for allegedly negligently overprescribing the drugs. "Our position is that there are checks and balances,' he said. "The doctor is supposed to monitor [the patient], and Florida law says the pharmacist does not have to fill a prescription. We think they should have said no after a while instead of filling many, many prescriptions over about a two-year period."

Judge Crow's ruling is the latest in a growing portfolio of court decisions recognizing the expanded duties of pharmacists, said David Brushwood, R.Ph., J.D., professor of pharmacy healthcare administration, University of Florida. "The courts are rejecting the no-duty argument; it's no longer working the way it once did," he said. "Law is following the practice here, which is appropriate. Pharmacists have developed practices that go beyond merely filling scripts correctly. That used to be enough but not any more because the profession stepped up to the plate and said, 'We can do more and we will do more.' "

In the past few years, various court rulings have carved out more and more exceptions to the no-duty rule. For example, one exception holds that if there's an obvious error in a script, the pharmacist has a duty to ask the prescriber about it. Another ruling found that if a pharmacist voluntarily undertakes to provide expanded service, he or she has a legal duty to provide it. Another exception says if a pharmacist's activities have created a patient expectation for the pharmacist to do more, then there is a duty to do more.

"A huge exception is that if a pharmacist has special knowledge of a potential adverse effect, the pharmacist has a duty to act on it," said Brushwood, "but that knowledge isn't so special. The kind of knowledge they are talking about is what most pharmacists would consider to be ordinary knowledge. We have so many exceptions to the general no-duty rule that the general rule is pretty much evaporating. Defense attorneys have their fingers in so many holes in the dike, but it's still bursting through."

When in doubt about whether a refill may be excessive, R.Ph.s should call and check with the prescriber, Brushwood advised. Or they could also ask the patient about why there's a seemingly early refill. It might be something as simple as an upcoming two-week vacation.

"Pharmacists have to look at the days' supply and the directions," said Brushwood. "Let's say the patient is given a quantity of 90 and told to take three per day for 30 days. If the patient comes back in 12 days and says he's out, and the pharmacist looks at the prescription and says, 'Yep. There are refills authorized,' and fills it, that's excessive refills. What should he have done? Call the doctor. You may discover the doctor just changed the directions, but make the call."

[Editor's note: See the CE lesson for a more in-depth coverage of R.Ph.s' duty to warn.]

Carol Ukens