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April 21, 2016

Pharmacists Now Have a Broader Duty to Take "Additional Measures" Before Dispensing Medication

Pharmacists are increasingly playing a greater role in patient care. They counsel patients regarding prescriptions, recommend alternative treatments, and even administer vaccines. According to the American Pharmacists Association, "this advance in practice responsibilities has been evidenced in many ways, including judicial views of pharmacists."

In one recent case, the Second Department held that a pharmacist who does "not undertake to exercise any independent professional judgment in filling and dispensing prescription medication"¦cannot be held liable for negligence in the absence of evidence that he or she failed to fill the prescription precisely as directed by the prescribing physician or that the prescription was so clearly contraindicated that ordinary prudence required the pharmacist to take additional measures before dispensing the medication." Abrams v. Bute, 2016 N.Y. Slip Op. 01627 (2d Dep't 2016). This holding represents an expansion, albeit modest, of the traditional standard of care applicable to pharmacists. Whether this decision represents the limits of pharmacist liability, or the beginning of a trend toward further expansion, remains to be seen.

In Abrams, the plaintiff's husband underwent surgery, after which his doctor prescribed hydromorphone for pain. His wife filled the script at a local CVS pharmacy, returned home, and gave her husband the dosage of eight milligrams prescribed by his doctor. One hour later, he died of hydromorphone intoxication. The decedent's wife commenced an action against her husband's doctor, as well as the CVS pharmacy that filled the prescription.

The complaint alleged that the dosage prescribed by decedent's doctor was "dangerous for an opioid-naïve patient," especially someone who had not "previously been exposed to that narcotic." As against CVS, the plaintiff asserted that the dosage "was so high" that the pharmacist "had a duty to take steps to confirm that the prescription was appropriate for the decedent under the circumstances."

Following discovery, CVS moved for summary judgment on the grounds that its pharmacists had no duty to warn the decedent of the dangers of taking the prescribed dosage of hydromorphone, or for that matter, take any measures to ensure that the prescription was appropriate for the decedent under the circumstances. The plaintiff opposed the motion and cross-moved for summary judgment on the issue of liability. The Supreme Court denied both the motion and the cross-motion, finding that there were material issues of fact as to whether CVS breached a duty owed to the decedent. Both sides appealed.

The central question on appeal was whether a pharmacist has a duty to warn a customer or contact the prescribing physician to inquire about whether the prescription is correct, or even appropriate, for the patient. Traditionally, a pharmacist's duty was limited to accurately filling prescriptions "in accordance with the instructions provided by the prescribing physician." This is often referred to as the "technical accuracy" rule, meaning the pharmacist has a duty "to ensure that patients receive the correct drug, in the correct dosage, with the correct directions," as prescribed by their physicians. CVS argued that a pharmacist who complies with the "technical accuracy" rule has properly discharged his or her duty of care to the patient. The Court rejected the argument of CVS that pharmacists have a limited duty of "technical accuracy", but then found that CVS had met its burden on its motion for summary judgment under the expanded duty announced by the Court, and dismissed the complaint as to it and its employee pharmacists.

The Court observed that some medical professionals, in particular hospital nurses, may be liable for carrying out a doctor's order when they know that the order is "so clearly contraindicated by the normal practice that ordinary prudence requires inquiry into the correctness of the order." The "so clearly contraindicated" standard had previously been applied in New York to other medical professionals, but never to pharmacists. The Court found ample support in case law from other jurisdictions, as well as New York decisions that addressed the standard in dicta. When juxtaposed against these cases, the Court found "no merit" to CVS's "categorical contention" that a pharmacist's duty will never extend beyond accurately filling a prescription.

Under Abrams, where a pharmacist does not "undertake to exercise any independent professional judgment" in filling a script, he or she cannot be liable for negligence so long as the patient received the correct drug, in the correct dosage, with the correct directions, as prescribed by the patient's physician. However, where the prescription "was so clearly contraindicated" under the circumstances, the pharmacist is charged with a duty to exercise his or her professional judgment by taking additional measures before dispensing the medication. CVS was able to meet this test through the submission of expert evidence, which demonstrated that its pharmacist complied with the "technical accuracy" rule, and that the prescription itself was not "so clearly contraindicated that ordinary prudence required" the pharmacist to take "additional measures."

Abrams "rejects the contention that a pharmacy is no more than a warehouse for drugs and that a pharmacist has no more responsibility than a shipping clerk who must dutifully and unquestionably obey the written orders of omniscient physicians." Unfortunately, Abrams provides little guidance as to when, and under what circumstances, pharmacists must take these "additional measures," or what those measures consist of. To its credit, the decision recognizes this, and the "infinite variety of situations which may arise" making it "impossible to fix definite rules in advance for all conceivable human conduct."

At a minimum, it seems clear that if a pharmacist has any questions about the dosage, frequency, or type of medication prescribed, he or she has a duty to inquire as to whether the patient has taken the medication previously; whether there were any side effects; what medications the patient is currently taking; and the medical condition for which the subject medication has been prescribed. These answers may warrant additional follow-up with the prescribing physician, or even a warning or instruction by the pharmacist to the patient concerning the prescription.


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