I 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.
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.
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.
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
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