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Pharmacy Times
Lawsuits were initiated against the pharmacy and prescriber.
A patient sought care at a neighborhood medical office and completed an intake form when she arrived. On that form, she listed sulfa drugs as a category of medications to which she was allergic. She was seen by a nurse practitioner at the office who prescribed a generic of the combination sulfamethoxazole, a sulfa drug, and trimethoprim.
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She took the prescription to a chain pharmacy, where the requested medication was dispensed. She alleged that the staff at the pharmacy dispensed the medication to her “without performing any type of investigation regarding allergic reactions.” Soon after initiating therapy, she began having an allergic reaction. She went to a hospital emergency department and was subsequently hospitalized for 13 days.
Joseph L. Fink III, JD, DSc (Hon), BSPharm, FAPhA, is professor emeritus of pharmacy law and policy as well as former Kentucky Pharmacists Association Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.
Her lawsuit against the pharmacy identified the breach of legal duty as “allowing a contraindicated drug to be prescribed, filled, and delivered” and “failing to question the patient about known allergies, nor do any investigation of any kind regarding allergies before dispensing the prescription.”
The state law required submission of an expert affidavit to support the claim of negligence when suing professionals licensed by the state or licensed health care facilities based on the actions of licensed health care professionals. That affidavit must “identify at least 1 negligent act or omission claimed to exist and the factual basis for each such claim.”
The trial court dismissed the lawsuit because the plaintiff failed to provide an expert affidavit as required. The plaintiff-patient appealed that dismissal decision, and a 3-judge panel of the state court of appeals upheld the trial court’s dismissal.
The plaintiff ’s attorney had argued that the plaintiff was not required to file such an affidavit because she had not sued a pharmacist directly. Rather, she argued that her claim was based on the alleged failure of the pharmacy chain’s “business model,” under which she said the firm would keep records of patients’ medication purchases from the pharmacies.
The appellate court panel disagreed with that approach, interpreting the underlying complaint that launched the suit as focused on the company’s responsibility for the actions of employees who had failed to inquire about the plaintiff ’s known allergies, resulting in her being provided with contraindicated medication.
The appellate panel indicated that the theory of negligence that her attorneys advanced “directly implicates (the firm’s) exercise of professional skill, expertise, and judgment in operating a pharmacy.” Thus, the plaintiff ’s case would rely heavily “on the report of an expert’s knowledge to prove her case.” Therefore, the trial court had reached a correct decision when dismissing the claims against the pharmacy chain because her attorneys had failed to file “an adequate expert affidavit regarding the standards of care applicable to pharmacies and pharmacists.”
