Pharmacy Law: Liability When Dispensing to Allergic Patients

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

Issue of the Case

When a pharmacist dispenses a medicationin a category of pharmaceuticals towhich the patient is allergic, what legaldoctrines, in addition to negligence, maybe used in the lawsuit against the pharmacy?

Facts of the Case

A patient in a midwestern state wasexperiencing severe menstrual crampsand asked that her physician phone ina prescription for her. The physicianphoned the pharmacy to request dispensingof a nonsteroidal anti-inflammatorydrug (NSAID), although the patienthad experienced allergic reactions to thatcategory of medications in the past.

The husband of the patient came tothe pharmacy to pick up the prescription,and testimony was presented thatneither he nor his wife was aware thatthe medication was an NSAID. Whenthe wife had presented prescriptions atthe pharmacy in the past, she had beenapproached by staffmembers to inquireabout any drug allergies,and she toldthem she was allergicto aspirin, acetaminophen,andibuprofen. The husbandtestified thatthe same question was asked with thistransaction and that he had reported herhistory of drug allergies.

In his testimony, the manager of thepharmacy noted that pharmacists wererequired by policy to inquire about allergies.Moreover, the pharmacy's computersystem would have borne informationabout the hypersensitivity. If anew prescription was entered into thecomputer, the software would comparethat new information with the preexistinginformation about other medicationsbeing used by the patient, as well as historyof allergies. If an incompatibility wasdetected, a warning would have flashedon the computer screen. This warningonly could be overridden after calling theprescriber or by an override requiring thatthe pharmacist enter a security code.

The manager testified that it wasimproper for the pharmacist to completean override without contacting the prescriber.In this case, the system reflectedneither an indication that the physicianhad been contacted, nor that a manualoverride had occurred. The pharmacistwho actually dispensed the medicationtestified that she had no recollectionof the entire incident. She did indicate,however, that the patient's history ofallergies would have been available toher through the computer system.

After consuming the first dose, thepatient began having difficulty breathing.She called the pharmacy to ask if theremight be some explanation and was toldno. Suffering continuing breathing problems,she consulteda pharmacist-friendwho was familiarwith her historyand told her to goto an emergencyroom immediately.She was diagnosedas being in anaphylacticshock and subsequently reportedincreased episodes of asthma, petit malseizures, and worsening of her multiplesclerosis.

She filed a lawsuit against the pharmacyusing several legal doctrines: negligence,loss of society, willful and wantonmisconduct, and battery. The case wasfiled in a federal trial court, and the pharmacymoved for summary judgment onthe last 2 claims, requesting that thejudge rule they lacked merit and shouldbe dismissed.

The Court's Ruling

The motions to dismiss both claims—willful and wanton misconduct as well asbattery—were denied.

The Court's Reasoning

Turning first to the willful and wantonmisconduct argument, the judgereviewed a state statute designed toshield some defendants from punitivedamages associated with malpracticeclaims. He concluded that the statutedid eliminate the possibility of punitive damages being assessed as punishmentfor a verdict of willful and wantonmisconduct, but the plaintiff still couldrecover compensatory damages basedon negligence.

The second legal theory to be addressedwas battery, traditionally definedas offensive touching without consent.The judge stated that in order for theplaintiff to recover damages, she wouldneed to show that (1) the pharmacyintended to cause a harmful contact; (2)harmful contact occurred; and (3) theplaintiff did not consent to the contact.

With regard to 1, the court concludedthat the plaintiff need not show thatthe pharmacy intended the harm; itwas only necessary to show that thepharmacy intended to bring about thecontact when dispensing the offendingmedication. On 2, the court determinedthat the harmful contact occurred whenthe defendant caused the plaintiff to"come in contact with a substance in away that may be viewed as offensive";whereas for 3, the lack of consent existedbecause the patient did not know shewas receiving a medication to which shelikely would be allergic.