SC Lawyer, July 2004, #4. The evolving duty of pharmacists To warn or not to warn?.

• Author: By Lynn H.Gorod

South Carolina Lawyer

2004.

SC Lawyer, July 2004, #4.

The evolving duty of pharmacists To warn or not to warn?

South Carolina LawyerJuly 2004The evolving duty of pharmacists To warn or not to warn?By Lynn H.GorodA sound argument could be made that South Carolina's statute imposes a duty to warn on the pharmacist, and a violation of that duty constitutes negligence per se or, at least, evidence of negligence sufficient to send the claim to a jury.

A pregnant woman enters a South Carolina drug store to have her prescription filled by the pharmacist. The pharmacist fills the prescription accurately and dispenses it to the woman. Several months later the woman gives birth to a baby born with deformities attributable to the medication dispensed to her earlier in her pregnancy by the pharmacist. Did the pharmacist have a legal duty to warn the pregnant woman of hazards associated with taking that particular medication during pregnancy?

With drug therapy playing an increasingly important role in providing health care, courts are increasingly faced with the legal question of who in the health care community has a duty to counsel and warn consumers of potential problems that can occur when taking prescription drugs. While the liability of the prescribing physician for failure to warn has been fairly clear cut, the liability of the dispensing pharmacist has not been so clear. This article will look at the evolving role and potential liability in duty to warn cases of pharmacists in general and South Carolina pharmacists in particular.

The evolution of case law in pharmacist's duty to warn cases

Although the duty to warn consumers of unreasonably dangerous products is well established in product liability law, generally that duty has not extended to pharmacists in the context of prescription drugs. A number of jurisdictions have addressed the issue of whether a pharmacy has a duty to warn its customers of the risks and side effects of the drugs it dispenses, and the overwhelming majority have held that, in general, a pharmacy has no duty to warn its customers of side effects. Cottam v. CVS Pharmacy, 436 Mass. 316, 764 N.E.2d 814 (2002); Kintigh v. Abbott Pharmacy, 200 Mich. App. 92, 503 N.W.2d 657 (1988); Batiste v. Home Prods. Corp., 32 N.C. App. 1, 231 S.E.2d 269 (1977); Coyle v. Richardson-Merrill, Inc., 526 Pa. 208, 584 A.2d 1383 (1989). A pharmacist's duty of care has generally been held to entail providing the right drug in the correct dosage according to a valid and lawful prescription.

The basis for not extending this duty has widely been premised on the "learned intermediary doctrine."

This doctrine, which has been accepted in many jurisdictions, including South Carolina, provides that manufacturers of prescription drugs have a duty to warn prescribing physicians of a drug's known dangerous propensities. Physicians, in turn, using their medical judgment, have a duty to convey the warnings to their patients. The doctrine precludes the imposition of a duty upon drug manufacturers to warn patients directly. Brooks v. Medtronic, Inc., 750 F.2d 1227 (4th Cir. 1984); see also Tarallo v. Searle Pharm., Inc., 704 F. Supp. 653 (D.S.C. 1988).

Although not tested as of yet in South Carolina, in other jurisdictions the doctrine has been extended to also apply to pharmacists in exempting pharmacists and pharmacies from giving warnings. Kasin v. Osco Drug, Inc., 312 Ill. App. 3d 823, 728 N.E.2d 77 (2000); McKee v. Am. Home Prods. Corp., 113 Wn.2d 701, 782 P.2d 1045 (1989). In McKee, the Supreme Court of Washington concluded that the reasons for applying the learned intermediary doctrine to drug manufacturers apply with equal force to pharmacies. The court reasoned that the physician is in the best position to understand the patient's needs and to assess risks and benefits of a particular course of treatment and to make decisions regarding what the patient should be told regarding the prescribed medications. Id.

However, increasingly there have been exceptions to the learned intermediary doctrine creating responsibility, and consequentially liability, on the part of the pharmacist. A number of courts have found that "special circumstances" can alter the general rule that pharmacists do not have a duty to warn patients and/or contact prescribing physicians. A clear error on the face of the prescription has sufficed as...