Florida Supreme Court affirms R.Ph.s' duty to warn

August 7, 2006

The Florida Supreme Court recently added another brick to the increasingly solid legal wall of opinion that pharmacists have a duty to warn. The high court decision sent a lawsuit involving a drug overdose death against two pharmacies and a physician back to a lower court for trial.

The lawsuit contends that the pharmacies should have refused to dispense excessive prescriptions or consulted with the physician prior to the October 2002 death of Gail Powers, a 46-year-old waitress who was being treated for work-related head and neck pain.

The autopsy detected six prescription drugs in her body and concluded that the cause of death was combined drug overdose. The drugs-including OxyContin (oxycodone, Purdue Pharma), benzodiazepines, and Soma (carisoprodol, MedPointe Pharmaceuticals)-had been prescribed by Shirin Thobani, M.D., and dispensed by Your Druggist and a Medicine Shoppe owned by B.A.L. Pharmacies. All three were named in the lawsuit filed by the woman's husband in late 2003.

On June 22, the Florida Supreme Court decided that there is no conflict of opinion among the various district courts and let the Fourth District Court decision stand, thereby setting a duty-to-warn precedent. The case will now go back to the original court for trial, if a settlement is not reached before that.

"The Powers case is pretty important," said pharmacy law expert David Brushwood, R.Ph., J.D., professor, pharmacy health care administration, University of Florida. "The state supreme court has ruled in a way that causes us to conclude that pharmacists do have a duty to warn patients about some things. Pharmacists have a duty to warn under some circumstances, but deciding what those circumstances are depends on developing the facts of the case and listening to expert testimony and having a jury decide. The duty is to exercise reasonable care under the circumstances. That's what the trial will determine, if there is a trial."

At trial, the plaintiff will argue that the pharmacies dispensed an excessive amount of drugs and dispensed drugs that were contraindicated, said Stephanie Alexander, J.D., a partner with Tripp Scott P.A., Fort Lauderdale, Fla. For example, the suit alleges that Gail Roberts received 30 OxyContin, benzodiazepines, and Soma and another 30 pills of the drugs three days later.

"They should have warned her or consulted with the doctor before filling the prescriptions," Alexander told Drug Topics. "The defendants were trying to say that all they really had to do was fill it properly. Most pharmacy laws now say that pharmacists have a duty to screen for contraindications and excessive prescriptions. So the question at trial is whether they breached that standard."

Attorneys for the defendant pharmacies did not respond to requests for comment.

The defendant pharmacies stand a good chance of winning the case because the pharmacists appear to have been competent practitioners, said Brushwood. "This is a seemingly lurid tale of a patient who got a sustained-release opioid and an immediate-release opioid, two benzodiazepines, and Soma as a muscoskeletal relaxant," he said.

"One of the drugs was OxyContin, so the assumption is that something must be wrong," Brushwood continued. "On one occasion, the patient came in too early for a refill that she shouldn't have run out of, but there are good explanations for all of that. The pharmacists did have a duty, but I think they met that duty by providing the medication to the patient because there was no reason to be concerned about it. The attorneys have to explain why this pharmacy met its responsibility to the patient based on the facts, rather than arguing as a matter of law that pharmacists have no duty to patients."