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Commentary

Can a Pharmacy Be Liable to a Third Party?

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August 08, 2019

latnerTo what extent is a pharmacy liable for harm that a patient causes to others while the patient is using medication provided by the pharmacy? In other words, can a pharmacy owe a duty of care to a third party based on the pharmacy’s relationship with the patient? This is the question that arose after a patient filled a prescription for Fentanyl in the pharmacy, misused the medication, and killed two people in a fatal car crash.

Just the Facts

The patient, Mr. K, had a history of narcotics dependency, and was being managed by his physician, Dr. O, for chronic pain. Dr. O prescribed Fentanyl and other controlled substances but did not require Mr. K to sign a narcotics contract, implement a pain-management plan, or submit to drug screens to monitor usage despite. D Pharmacy was located in the same office complex as Dr. O, and this is where Mr. K would often fill his prescriptions. For two years, Mr. K filled his prescriptions at D Pharmacy.

Mr. K often had to deal with Dr. O’s physician assistant who was far more reluctant to authorize additional medication. When Mr. K did not get what he wanted from the physician assistant, he would go to Dr. O himself, and the physician would write a prescription for him. 

A day after the physician assistant refused Mr. K’s request for more medication, the patient went to Dr. O’s office where the physician provided him with a prescription for two Fentanyl patches but did not physically examine him. 

Mr. K took the prescription to D Pharmacy where he filled it. He stepped out of the pharmacy, opened the bag, took out one of the Fentanyl patches and put it in his mouth (contrary to the intended method of use). Mr. K then got in his car and drove away.  On his way home, he crossed the center line of a major street into oncoming traffic and crashed into a car driven by Ms. A. The car also contained Ms. A’s two sisters, both of whom were fatally injured in the crash. Ms. A was injured but survived. 

When Ms. A recovered, she hired a plaintiff’s attorney and sued Dr. O, his practice, and D Pharmacy for negligence. Ms. A argued that the harm to her was foreseeable, and that the pharmacy violated regulations requiring pharmacists to refuse to fill a prescription if there is a reason to believe the medication will not be used for a legitimate medical purpose.  

D Pharmacy made a motion for summary judgement, asking that the court dismiss the case against it, arguing that while the pharmacy has a duty to its patient, it owes no duty to a third party. The pharmacy further argued that the plaintiff’s injuries and the deaths of her sisters were not a foreseeable result of the proper filling of a prescription that was valid on its surface.

The court disagreed with the pharmacy and denied its motion. The pharmacy appealed.

Court of Appeals Decides

On appeal, the pharmacy argued that the trial court had erred in denying its motion because it owed no duty to the plaintiff. The Court of Appeals looked at whether such a duty to a third party exists. 

The Court of Appeals stated that a pharmacist is generally not held liable for damages resulting from a correctly filled prescription. The court noted that Michigan courts (where this case took place) do not impose a duty on pharmacists to warn of side effects of medications, or to monitor drug usage.

The court brushed off the plaintiff’s argument that the harm to her and her family was foreseeable and that the pharmacy had a duty. It noted that the cases that the plaintiff was basing her argument on involved physicians treating patients who later injured or killed third parties as a result of the physicians’ allegedly improper treatment. The court said that the case against the pharmacy was fundamentally different because the pharmacy and its pharmacist were under no duty to monitor Mr. K’s use of Fentanyl. 

The Court also noted that for third parties, a duty is imposed “only as to those persons readily identifiable as foreseeably endangered.” The Court did not find foreseeability here. “Michigan case law does not allow for the imposition of a duty under the circumstances presented in the present case,” the court wrote in its decision. “Accordingly, the negligence claim against the defendant is not viable.” The court dismissed the case against the pharmacy.

Next Steps

This case is still pending against the physician and his practice and based on the facts (as they were set forth in the court’s decision regarding the pharmacy) the physician faces potential liability. It appears that despite knowing that his patient was dependent on narcotics and was using drugs recreationally, he still chose to manage the patient’s pain with controlled substances that are often abused. There seemed to be little oversight of the patient’s use of his medications, and Mr. K was always able to convince Dr. O to write him a narcotic prescription, even when the physician assistant had advised against it. While no one can predict what will happen at a jury trial, it does appear that Dr. O may have breached his duty to his patient. Whether that means he will be liable to a third party, remains to be seen. 

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly Director of Periodicals at the American Pharmacists Association.

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