Rx & The Law
The Pharmacist's Duty To The Patient
by Donald McGuire, R.Ph., J.D.
Professional Claims Attorney
Pharmacists Mutual Insurance Company
The practice of pharmacy has undergone tremendous
changes in the last few years. The trend has been to move from product dispensers
to providers of pharmaceutical
care. One of the milestones in this transition was the passage of the Omnibus
Budget Reconciliation Act of 1990 (OBRA ’90). Among the requirements
of this act are that a prospective drug review be performed and that the patient,
or the patient’s caregiver, be counseled on the proper use of the medication,
its common side effects, duration of therapy, refill information, etc. Due
to time and/or economic restraints, some pharmacists and pharmacies have been
slow
to embrace OBRA ’90. A recent court decision may give pharmacists more
incentive to overcome these obstacles.
Franklin Horner presented two prescriptions
to pharmacist Anthony Spalitto in Kansas City, Missouri. The first was for
Diazepam 10mg; 1 tablet every 8
hours.
The second was for Ethchlorvynol 750mg; 1 capsule every 8 hours. The pharmacist
consulted a reference and found that the normal dose for Ethchlorvynol was
500 to 750mg at bedtime. The sedative dose is 100 to 200mg up to three times
a day.
There is also the possibility of additive CNS depressant effects when the
two are used together. Spalitto called the physician’s office
and an unidentified person at the office told him that the prescription
was correct as written
and the physician intended for Horner to be sedated throughout the day. The
pharmacist
filled both prescriptions. Six days later, Horner was found dead with near
toxic levels of Ethchlorvynol in his system.
The patient’s family filed
suit against the pharmacist. The pharmacist’s
attorney filed a Motion for Summary Judgment based on the undisputed fact
that the prescriptions were filled correctly and that was the pharmacist’s
only obligation to the patient in Missouri under the ruling in Kampe. The
trial court
agreed and the case was dismissed. The patient’s family appealed.
The
appellate court ruled that the Kampe court confused a pharmacist’s
duty to the patient with the specific functions which the pharmacist’s
duty requires the pharmacist to perform. The court said that it is wrong
to hold that a pharmacist’s duty will never extend beyond filling
a prescription correctly. The pharmacist’s duty is to exercise the
care and judgment that a reasonably prudent pharmacist would exercise in
the same or similar circumstances.
While this would certainly include filling a prescription correctly, it
could also include many other functions.
The court examined the Pharmacy
Practice Act
and OBRA ’90 to determine what these other functions could be.
The practice of pharmacy as defined in the Pharmacy Practice Act included
not
only dispensing,
but also interpreting and evaluating prescriptions, participation in
drug selection as allowed by law, and consultation with patients and
other health
care professionals
about the safe and effective use of drugs. The court also noted the
requirements under OBRA ’90 as mentioned in the first paragraph
of this article. The court concluded that continuing to follow the
Kampe rule would fail
to take into
account the more expansive role pharmacists play in the provision of
health care today. This more expansive role has been recognized by
both the legislature
and
the board of pharmacy.
To hold as Kampe did would denigrate the expertise
which a pharmacist’s
education provides concerning drugs and their therapeutic use.
The Kampe holding also failed to comprehend the role a pharmacist
must
play in making the valuable,
but highly dangerous, service of drug therapy as safe and reliable
as it can be.
The court noted that there was not enough evidence
in the record to determine whether the pharmacist fulfilled his
duty to Horner.
Should
he have insisted
on speaking personally with the physician? Could he have done more
to warn both the physician and the patient? Should he have refused
to fill
the
prescription? What would a reasonable and prudent pharmacist do
in this situation? These
are
the questions which will be answered when the trial court continues
hearing the case after remand.
The lesson for pharmacists is that
the days of "product dispensing" are
over. Pharmaceutical care enhances the professionalism of pharmacy
practice as well as improving the patients’ overall health
care. If you do not keep patient profiles, do not perform a prospective
drug review, do not consult with
prescribers and patients about the proper use of medications,
will you be viewed as a reasonably prudent pharmacist?
This article
discusses general principles of law and risk management.
It is not intended as legal advice. Pharmacists should consult
their own attorneys
and
insurance companies for specific advice. Pharmacists should
be familiar with the policies and procedures of their employers
and insurance
companies, and
act accordingly. |