Pharmacy Law: May a Physician Testify as a Pharmacy Expert Witness?

Dr. Fink is professor ofpharmacy law and policy atthe University of KentuckyCollege of Pharmacy,Lexington.

Issue of the Case

In many civil trial cases, an expertwitness may be present to explain theintricacies of a professional's activitiesto the jurors so jurors can betterdecide the case. In a case alleging negligenceby a pharmacist when dispensingmedication, may that expert witnessbe a physician who is not trainedor experienced in the practice of pharmacy?

Facts of the Case

A woman in a Midwestern state wasadmitted to the hospital through theemergency room because of shortnessof breath and continuing tiredness. Shewas diagnosed as having a hypoactivethyroid. Her physician issued a prescriptionof 2.5 milligrams of Synthroid(levothyroxine), but he later admittedthat he intended to write 25 micrograms,one hundredth of what he actuallyprescribed.

The patient's daughter presented theprescription for dispensing, and the pharmacistcommented that the dosageappeared to be high for a patientundergoing initiation of therapy. Healso noted that the computer softwarein the pharmacy flagged the prescriptionas being in excess of recommendeddosage. He had, however, dispensedprescriptions for that strength in thepast, and he did not consider it to be a"poisonous" dose. There was disputedtestimony regarding whether the pharmacistcalled the prescriber to verifythe dosage specified.

The patient's health deterioratedafter she began taking the medication.The family made repeated efforts tocontact the physician, and he returnedtheir calls about 1 week after her initialhospital admission. At that point, heuncovered the dosage error and instructedthe family to give the patientone-half tablet rather than the fulldosage unit. Within 2 weeks of heremergency room visit, the patient died.

The Court's Ruling

The case went before federal courton a motion for summary judgmentfiled by the defendant pharmacy—meaning the court views everything ina light most favorable to the plaintiff,then ascertains whether the plaintiffhas presented a sufficient case to proceedor if the court proceedings shouldbe terminated at that point becausesome key element of the plaintiff'scase is absent.

The court ruled in favor of the defendantpharmacy chain because theplaintiff had failed to establish theappropriate standard of care applicableto the pharmacist by using relevantexpert testimony. The case was dismissed.

The Court's Reasoning

First, in a hearing on a motion forsummary judgment made by the defendant,the judge assumes all issues to bemost favorable to the plaintiff. Forexample, on the disputed matter ofwhether the pharmacist called the prescriberto check the dosage, for purposesof deciding this motion, the judgeassumed the pharmacist had notplaced that telephone call.

Next, 2 types of witnesses may beinvolved in a case. Fact witnesses havefirsthand knowledge of the situationbeing considered and may testifyabout what they saw or what theyknow about the matter. Expert witnesseshave no firsthand knowledge ofwhat transpired and are included in theproceedings to help the jury reach amore informed decision. Fact witnessesmay testify only about whatthey know and not offer opinion testimony.Expert witnesses, however,may offer professional opinions aboutthe issues in the case. Whether anindividual is qualified to serve as anexpert witness in a case is a questionfor the judge.

The judge pointed out that state lawrequires that the pharmacist owes thepatient a duty of reasonable care. It isthe responsibility of the plaintiff to definethe duty of reasonable care andestablish how that duty was breached.For the jury to determine whether aprofessional has met the applicablestandard or care under the circumstances,expert testimony in that fieldis required.

In this case, the plaintiff had listedonly 1 expert witness, a physician. Thecourt emphasized that "the precisequestion is whether [the physician] issufficiently qualified as an expert totestify about the standard of care of apharmacist." Acknowledging his credentialsas a physician, the court notedthat he did not indicate whether hehad any knowledge about the practiceof pharmacy.

Specifically, the court said: "Nowherein his opinion does he offer what apharmacist should do when filling aprescription, when a pharmacistshould question or reject filling a prescription,or when a pharmacist shoulddouble check with a physician about aprescription."

The court summarized: "Simply put,the physician's opinion reveals insufficientknowledge about pharmacy."