Court: Wrongful death case against pharmacy can proceed

June 2, 2016

A Florida appeals court recently ruled that the estate of an Ohio man who died from a fatal dose of pain medication could sue the compounding pharmacy that filled the prescription.

A Florida appeals court has ruled that the estate of an Ohio man who died from a fatal dose of pain medication could sue the compounding pharmacy that filled the prescription. The court's decision in May reversed a lower court decision that dismissed the allegations against the pharmacy.

According to court records, Darryl Ray Sorenson, 55, was being treated for back pain resulting from an auto accident. Sorenson's doctor treated his back pain with hydromorphone that was administered through a pain pump in his spinal canal.

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In 2012, while on vacation in Florida, Sorenson was referred to Charlotte Pain Management (Port Charlotte) by his doctor in Ohio. There, a doctor increased the concentration of Sorenson's medication. Sorenson's dosage strength was tripled.

Professional Compounding Pharmacists of Western Pennsylvania compounded the hydromorphone and released it directly to the pain center. The pain center administered the drug to Sorenson and he died that day.

Sorenson's estate filed a wrongful-death lawsuit against the pharmacy, the pain center, and several of the healthcare providers involved in Sorenson's treatment. The lawsuit alleged that the pharmacy was negligent for preparing medication that was unreasonable due to the dosage strength. It also faulted the pharmacy for not being registered or licensed in Florida.

A circuit judge in Charlotte County, Fla. dismissed the allegations against the pharmacy. However, Florida's 2nd District Court of Appeal recently issued a 2-1 ruling that reversed the circuit judge's decision and reinstated the allegations against the pharmacy.

 

"The pharmacist (company) asserts that, as a compounding pharmacist, it was two steps removed from Mr. Sorenson because it dispensed the medication to the prescribing physician who then administered it to Mr. Sorenson," Judge Morris Silberman wrote.

"We recognize that compounding pharmacists may have no direct contact with patients. However, we are not persuaded that the lack of direct patient contact shields a compounding pharmacist from its duty to use due and proper care in filling a prescription that is intended for administration to that patient. We also note that this duty arises not from a duty to warn the patient; rather it arises from the duty to not fill a facially unreasonable prescription without appropriate inquiry," Judge Silberman wrote.

Silberman also wrote: "We agree with our sister courts that a pharmacist's duty to use due and proper care involves more than simply filling the prescription as written. We share in the Fifth District's conviction that robotic compliance with a prescribing physician's instructions will not shield a pharmacist from liability when the prescription is unreasonable on its face."

Judge Robert Morris agreed with Judge Silberman. However, Judge Edward LaRose issued dissenting opinion.

"Taken to its logical conclusion, the court's decision will require a compounding pharmacy, upon receipt of a prescription for a new patient, to contact the prescriber to inquire about the patient's history and course of treatment, even if the prescription appears regular on its face," Judge LaRose opined. "I know of no law or regulation that requires such a burdensome inquiry."