Expert Opinions: Sometimes Required and Sometimes Not

Issues of the Cases

A "battle of experts" is common inmost malpractice actions, with eachside presenting testimony from highlytrained individuals supporting theircause. Two cases are examined thismonth that determine whether experttestimony is required for a plaintiff tobe successful in a pharmacy malpracticecase. These actions demonstratethat the factual pattern and statutes ofa jurisdiction play a pivotal role in thefinal outcome—and that different outcomescan be inconsistent as a result.

Facts of the Cases

In a Texas case, a patient presented aprescription for Magsal [nonarcoticanalgesic combination], but the pharmacistmistakenly filled the order withNizoral [ketoconazole]. The patienteven questioned the pharmacist on severaloccasions as to whether it was theright drug because it did not look thesame as what she had received previously.The pharmacist assured her thatit was correct and that it looked differentbecause it was a generic substitute.

The patient became weak and nauseousand was hospitalized for 3 dayswhen it was determined that she wassuffering from an overdose of Nizoral.When contacted by a consultingphysician, the pharmacist admittedthat he misfilled the prescription.

The patient filed a lawsuit againstthe pharmacy but failed to submit anexpert report as required by Texas law.The case was dismissed and the plaintiffappealed.

In an action in California, thepatient suffered from a number ofchronic illnesses and was prescribednumerous medications, includingLasix [furosemide] and Calan [verapamil].She took the drugs regularlyand recognized Lasix as a small whitepill and Calan as a large blue capsule.

The plaintiff received a refill for Lasixlabeled "furosemide, generic for Lasix" but noticed that the medication lookeddifferent in form and appearance.Believing the difference was a result ofreceiving the generic version, she tookthe product for 4 days before shebecame comatose and was hospitalized.Upon her discharge, she went back tothe pharmacy and was told she hadactually received Calan instead of Lasix.

The patient sued the pharmacy. Noexpert opinion was presented. A juryreturned a judgment in her favor totalingover $300,000. The defendantpharmacy claimed that the plaintiff'sfailure to introduce expert testimonywas grounds for reversal.

The Courts'Rulings

The Texas Medical Liability andInsurance Improvement Act is very specificand requires the presentation of anexpert opinion in order to proceed. Thedismissal of the first case was upheld. Inthe California case, the jury award tothe plaintiff was upheld even thoughexpert testimony was not presented.

The Courts'Reasonings

What was the difference in thesecases? The Texas statute was enacted toprevent an adverse impact on theavailability of medical care and to helpcontrol rising health care costs createdby lawsuits. Under this law, plaintiffsalleging malpractice are required tocomply with certain procedural requirements.One of these requirementsis to provide each defendant healthcare provider with an expert's reportdescribing the applicable standard ofcare under the circumstances of thecase. The report must further show theconnection between the provider's failureto meet this standard and theplaintiff's injury.

The Texas statute specifically includedpharmacists as health care providers.The plaintiff made some futilearguments as to why it was not necessaryto submit the expert's report, butthe court was not persuaded. The dismissalof the action was affirmed.

In the second case, the Californiaappeals court also had to examine theneed for an expert's opinion. UnderCalifornia law, expert testimony isrequired to prove a pharmacist's negligence,unless the conduct requiredunder the circumstances is within thecommon knowledge of nonpharmacists.Applying this legal standard, thecourt found that no expert testimonywas needed to conclude that a pharmacythat dispensed the wrong medication(a drug completely different inname and substance from what wasprescribed) was negligent. The jury'sverdict was affirmed.

Larry M. Simonsmeier isEmeritus Professor ofPharmacy Law atWashington State UniversityCollege of Pharmacy.