Rx & The Law
Two State Supreme Courts Decide, "What Is The Pharmacists
One Gets It Wrong
by Kenneth R. Baker, B.S.Pharm.,
Vice President, General Counsel
Pharmacists Mutual Insurance Company
Howard Stark, R.Ph., FACA, was irritated. No
lawyer would ever understand
the source of Howard’s irritation, but most pharmacists would. Howard’s
pharmacy had been sued even though he had done everything correctly and professionally
for his patient, Mr. Kampe. That was not, however, why Howard was irritated. Howard’s
irritation was caused by the fact that he WON the lawsuit, or more specifically,
how he won the suit.
In the case, Kampe v. Howard Stark Professional
Pharmacy, Inc., the patient alleged the pharmacy failed to “warn,
counsel, evaluate, or verify the appropriateness of prescriptions, including
controlled substances.” The
actual facts were that the pharmacist had warned, had counseled and had evaluated
the prescriptions. These facts never came out, however, because the
Court ruled that the pharmacy had only a “. . . limited duty to properly
fill lawful prescriptions.” That is why Howard was irritated. “That
Court says my only job is to throw pills in a bottle! Pharmacists have
higher standards than that. How dare they say that!”
years later Missouri announced a new pharmacist standard, more closely
agreeing with Howard. In 1999 the Missouri Court of Appeals
rejected the Kampe Court’s extreme “limited duty” theory
Relegating a pharmacist to the role of order filler, as the
Kampe court seemed to do, fails to appreciate the role recognized
in [the pharmacy
act and OBRA 90]. We reject the suggestion in Kampe that the only functions
a pharmacist must perform to fulfill his duty is to dispense drugs according
to a physician's prescription.
Now, in 2002, Howard may be irritated again. This
time the Court is the
Massachusetts Supreme Court. And, like the Kampe Court, Howard may feel
the Court lacks respect for the professional abilities and duties of pharmacists. In
Cottam v. CVS Pharmacy the court was faced with “the issue whether a
pharmacy has a duty to warn its customers of the potential side effects of the
prescription drugs it dispenses.”
Specifically the case explained
that the plaintiff (patient) brought a “negligence
action against [CVS] pharmacy arising out of pharmacy's alleged failure to warn
patient about prescription antidepressant drug's potential side effect of priapism,
which, if not immediately treated, could cause permanent impotence.” After
reviewing decisions from other courts and other states (but apparently not the
state pharmacy practice act or ORBA 90 regulations), the Massachusetts Supreme
Court held: “where the pharmacist has no specific knowledge of an increased
danger to a particular customer, the pharmacist has no duty to warn that customer
of potential side effects.”
Unfortunately for CVS the court’s
holding did not mean they won. To
the contrary, the Court said that since CVS gave the patient a computer generated
information leaflet, which the Court said a patient could mistake for a “comprehensive
list of all known side effects”, then CVS legally volunteered to take on
additional, non required duties and thus, the Court said “ . . . it is
appropriate to impose on the pharmacy a duty commensurate with what it appeared
to have undertaken” (i.e. to warn of the side effect).
So what is the extent
of the duty of a pharmacist in Massachusetts beyond that
of, in Howard’s words, “throwing tablets in the bottle”? Can
the answer in Massachusetts be that if pharmacists do nothing, then they have
no other duties? Probably not, for while the Supreme Court may have a limited
view of pharmacists, the Board of Pharmacy holds them to a higher standard. In
Massachusetts, as in most states, pharmacists who fail to at least offer to counsel,
fail to perform prospective drug reviews and who act as if their only duty is
to accurately fill prescriptions, may violate Board regulations and may be subject
to disciplinary action.
Howard could also take heart in light of a decision
at the same time from the
Illinois Supreme Court. In Happel v. Wal-Mart the Court
found pharmacists have a duty to warn. Quoting the Appellate decision,
the Illinois Supreme Court held:
. . . [W]here defendant knew of Heidi’s allergies, where defendant
that Toradol was contraindicated for a person with Heidi’s allergies, and
where defendant knew that injury or death was substantially certain to result,
defendant had an affirmative duty to disclose, either to Dr. Lorenc or to Heidi,
the information that Heidi should not take Toradol. 316 Ill. App.
3d at 629.
Courts often do not understand pharmacy. The majority of recent cases
expanded pharmacists’ duties beyond that of merely correctly filling prescriptions. There
have been, and will in the future be, Courts applying outdated standards to the
profession. Pharmacists should not rely on these decisions to stop performing
as trained, educated professional pharmacists. The true judge of the standards
of practice of the profession of pharmacy is the practicing pharmacist.
v. Howard Stark Professional Pharmacy, Inc. 841 S.W.2d 223 (1992).
 Kampe, supra at 223.
 Kampe, supra at 226.
 Conversation between Ken Baker (author) and Howard Stark immediately after
the decision was published, September 1992.
 Horner v. Spalitto, 1 S. W.3d 519 (Mo. Ct App. Western Dist. 1999)
 Cottam v. CVS Pharmacy, 436 Mass. 316 (Mass. 2002).
 Cottam, supra at 316.
 Cottam, supra.
 Happel v. Wal-Mart, _____IL_____ (Ill. 2002).
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.