Special knowledge may give rise to special duties to warn

February 15, 2012

State courts have not agreed on the question of when or if pharmacists have a duty to warn a patient of potential ill effects of a prescribed drug. Weigh in on the discussion.

Some courts have found in pharmacists' standards of practice or OBRA-90 style regulations duties to warn of items such as allergies, contraindications, or even inappropriate dosing of medications.1-3 Most courts, however, have found pharmacists have no generalized duty to warn.

While there has been no uniform answer among the state appellate courts on the question of pharmacists' duty to warn, it is possible to see some evolution toward a universal understanding of what pharmacists can and should be required to do. In order to protect themselves from future civil liability, pharmacists need to know how the courts in their state have ruled on such questions and realize these decisions are subject to change.

Exceptions to the rule

While most courts have said pharmacists do not have a "generalized" duty to warn, many have recognized exceptions to that rule. In a 2011 case decided by the Arkansas Supreme Court, the pharmacist was found to have had no duty to warn the patient of the dangers of taking several prescribed drugs at the same time and of combining them with alcohol. Kevin Curry's doctor prescribed "several medications, including Norflex, Zoloft, Valium, Oxycontin, Percocet, Lorazepam, Methadone, Propoxyphene, and Doxepin" to treat pain. Curry "was already taking Percocet, Valium, Ambien, Trazodone, Norflex, Zoloft, Effexor, and Oxycontin."4 Two days after filling his prescriptions, Curry was found dead in his home. The cause of death according to the autopsy was "mixed drug intoxication combined with alcohol."

The Court seemed to feel that the problem was in reality a question of whether the drugs should have been prescribed. As such, the duty to warn was on the physician, not the pharmacist. The Court ruled there was no generalized duty for pharmacists to warn, but that there could be a duty if the pharmacist possessed "special knowledge."1

When might a pharmacist have "special knowledge?" In the Illinois case of Happel v. Wal-Mart, Heidi Happel's pharmacist had knowledge that the physician and the patient did not possess.1 Neither the physician nor the patient knew that the NSAID Torado was contraindicated for a person who was allergic to aspirin. The pharmacist testified she did know of the cross sensitivity. Unfortunately for all, the pharmacist did not realize Heidi was allergic to aspirin, even though it was noted in the pharmacy's computer and an alert was triggered.

In another example of special knowledge, a New York state court found the pharmacist may have a duty to warn when the pharmacist knew the patient was an alcoholic and the drug prescribed was "contraindicated with the use of alcohol."5

When a pharmacist has special knowledge that the drugs being taken by a patient involve overuse, allergies, or contraindications, he or she should consider if the physician or patient also knows this. If not, or if there is a question, the pharmacist may be wise to give special attention to educating the patient and/or the prescriber. If a pharmacist cannot counsel each patient or call each prescriber on each prescription, he or she may want to think, "Do I have special knowledge in this situation?"

Ken Baker is a pharmacist and an attorney consulting in the areas of pharmacy error reduction, communication, and risk management. Mr. Baker is an attorney of counsel with the Arizona law firm of Renaud Cook Drury Mesaros, PA. Contact him by e-mail at ken@kenbakerconsulting.com
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References

1. Happel v. Wal-Mart Stores, Inc., 766 N.E.2d 1118, 1121 (Ill. 2002)

2. Dooley v. Everett, 805 S.W.2d 380 (Tenn. Ct. App. 1990)

3. Horner v. Spalitto, 1 S.W.3d 519 (W.D. Mo. Ct. App. 1999)

4. Kowalski v. Rose Drugs of Dardanelle, Inc. and Randeep Mann, MD, 2011 ARK 44 (slip opinion Supreme Court of Arkansas) Feb. 29, 2011. The dissent pointed out the pharmacist actually had warned the patient of the dangers and of using alcohol while taking the medication.

5. Hand v. Krakowski, 89 A.D.2d 650, 453 N.Y.S.2d 121 (N.Y. App. Div.1982)

These articles are not intended as legal advice and should not be used as such. When a legal question arises, the pharmacist should consult with an attorney familiar with pharmacy law in his or her state.