Parent Requests Son Not Be Permitted to Pick Up Medications From Pharmacy

ISSUE OF THE CASE

When a pharmacist dispenses a prescription to a person pretending to be the son of a patient after being told not to do so and the imposter allows the true son to use some of the medication, resulting in death, what is the legal liability exposure of the pharmacy?

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FACTS OF THE CASE

This case in a mid-Atlantic state centers on 2 young men who were friends and who both were struggling with opiate abuse. The mother of 1 of the young men had been diagnosed with multiple myeloma, resulting in opiate pain medications being prescribed for her. The mother and her sister, aunt of 1 of the young men, were concerned that the son would attempt to pick up the mother’s pain medication at the pharmacy so it could be misused. Anticipating that, the aunt contacted the pharmacy with a request that only the mother and her boyfriend be permitted to pick up the mother’s prescriptions.

The son, away at college, called home to report an illness. He was transported to a hospital near home, where he was treated overnight with intravenous morphine. He texted his friend about the effects he was experiencing from the controlled substance, and the friend replied that he was experiencing withdrawal symptoms. The 2 texted about how they could get more controlled medications to misuse.

The morning the son was discharged from the hospital, his friend called the pharmacy, pretending to be the mother and seeking an additional supply of her oxycodone. The pharmacist on duty responded that it was too early for an additional supply of the requested medication but that the pharmacy did have another prescription for her to be picked up, consisting of fentanyl patches. The son’s friend, posing as the mother over the phone, told the pharmacist that she would send her son to pick up those patches but that he did not have a driver’s license or other form of acceptable identification. The pharmacist responded that this would not be a problem because he personally knew and would recognize him.

The son drove his friend to the pharmacy where the friend, posing as the son, picked up the prescription. The court noted that the receipt from the pharmacy bore an explicit notation saying, “Do not give to son.” During the drive back home, the friend punctured 1 of the patches and consumed some of the medication. After arriving home, the son consumed some of the fentanyl from the patches, smoked marijuana, and fell asleep.

Later that night, the friend tried to wake the son, but he was unresponsive and was pronounced dead at a hospital. The friend eventually entered a guilty plea to the criminal charge of involuntary manslaughter and multiple offenses related to possession of controlled substances, all related to the son’s overdose and death.

Six months later, the father of the deceased son filed a negligence lawsuit, both as his father and as a representative of his estate. He sought compensation from the pharmacy and the friend as part of a wrongful death claim and damages incurred as a survivor. The basis for his claim against the pharmacy was that the staff negligently allowed the friend to pick up the mother’s prescription for fentanyl, the direct cause of the son’s overdose and death.

The attorney representing the pharmacy filed a motion to have the lawsuit dismissed based on a legal rule known as in pari delicto, which roughly translates to “in equal fault” and is sometimes referred to as the wrongful conduct rule. This precludes the person who filed the lawsuit from recovering damages if their claim is based, wholly or in part, on facts where they are equally at fault.

The trial court judge decided the issue in favor of the pharmacy, ruling that the son’s death was “caused at least partially by his own criminal conduct.” That criminal conduct was possessing and consuming a controlled substance that had not been prescribed for him.

The father appealed that ruling, advancing the argument that “ingestion of controlled substances is not illegal” and, further, that the son had no role in the fraudulent transaction by his friend. The intermediate state appellate court rejected the father’s argument, so he appealed to the state’s Supreme Court.

THE RULING

The state Supreme Court concurred with both the trial court judge and the judges on the intermediate court of appeals.

THE COURT’S REASONING

The state Supreme Court concluded that the in pari delicto rule was indeed applicable in this case and no trial should be held. The son had committed a crime that directly caused his own death.

The court explained that “the purpose of the in pari delicto doctrine is not to punish (the plaintiff) or reward (the defendant). Allowing such lawsuits to proceed to trial would: (1) condone and encourage illegal conduct; (2) allow wrongdoers to receive compensation for, and potentially even profit from, their illegal acts; and (3) lead the public to view the legal system as a mockery of justice.”

About the Author

Joseph L. Fink III, JD, DSC (HON), BSPHARM, FAPHA, is a professor emeritus of pharmacy law and policy and the former Kentucky Pharmacists Association Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.

Reference

Albert v Sheeley’s Drug Store, Inc, 265 A.3d 442 (Pa 2021). Accessed September 6, 2023. https://www.pacourts.us/assets/opinions/Supreme/out/J-38-2021mo%20-%20104992002155170574.pdf?cb=1