Finger Pointing by Doctor and Pharmacist Over Refills

Issue of the Case:

This month's case, while not particularly dramatic in outcome, presents issues common in pharmacy law cases. An Ohio Court of Appeals was asked to determine whether a physician should share legal liability with the dispensing pharmacy for the death of a patient who received unauthorized prescription refills because of an error in transferring the prescription.

Facts of the Case:

The defendant physician is a vascular surgeon who performed surgery on John Doe. Doe was discharged from the hospital with instructions that he should take daily doses of Coumadin (warfarin) to inhibit blood clotting. The doctor asked Doe to come to his office for a follow-up examination, but Doe failed to do so. In fact, Doe never consulted with the physician again.

What is disputed, however, is that, during the next 18 months, the physician or someone in his office telephoned refill prescriptions for Coumadin to the pharmacy selected by Doe. The last of these refills was for a 1-year supply. Nine months later, Doe transferred his prescription to another branch of the same pharmacy chain.

During the transfer, the receiving pharmacist erroneously recorded the date of the prescription as the date of the transfer. This error resulted in the receiving pharmacy continuing to refill the Coumadin prescription beyond the year anniversary date on which it would have expired. Almost a year later Doe died from internal bleeding. A medical malpractice action was filed by Doe's estate against the physician and the receiving pharmacy.

The Court's Ruling:

Given that it had refilled the prescription beyond the limits provided under Ohio law, the pharmacy settled out of court, but the matter proceeded to a jury trial against the physician. The physician asked for a directed verdict in his favor, contending that the pharmacy's negligence was an intervening and superseding cause of the injury and that this negligence absolved him of liability. The trial court agreed, but the matter was overturned on appeal.

The Court's Reasoning:

The physician argued, on appeal, that, even if he or his office continued to prescribe Coumadin without proper patient observation, he is legally absolved of liability for negligence because the decedent's pharmacy continued to refill the prescription after its 1-year expiration date. According to the physician, the pharmacy's negligence was intervening and superseding and cut him off from liability.

Attorneys for Doe's estate vociferously denied that the pharmacy's negligence was sufficient to wholly negate the physician's liability. Moreover, they insisted that the questions of fact at issue are ordinarily ones for the jury.

The determination of an intervening cause involves a weighing of the evidence and an application of the appropriate laws to such facts. This is a function normally carried out by the trier of the facts?which in this case is the jury.

The test the jury will need to resolve is whether the original and successive negligent acts may be joined together as a whole, linking each of the defendants to the liability, or whether there is a new and independent act that intervenes and thereby absolves the original negligent party. That is to say, can the acts of the physician and pharmacy be linked together, or was the error in dating the transferred prescription a new and independent act that absolved the physician? The physician's motion for a directed verdict was denied, and the case was sent back to the jury.

Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.