Liability of pharmacist for improper advice

There was a case in which a patient telephoned a pharmacist regarding a medication for her spouse, who subsequently used the medication, and became ill as a result. The wife informed the pharmacist about her husband’s medical history, and the pharmacist told her that her husband could safely use a pseudoephedrine product. The pharmacist failed to make any inquiries of the wife regarding issues that would have disclosed that the husband had a history of prostate ailments.

The pharmacist has denied that the phone conversation took place, and contends that if it had occurred, she would not have approved of the use of the pseudoephedrine drug. In addition, a representative from the pharmacy argued that there was no mention of a history of prostate complications in the husband’s medical record at the pharmacy.

The lawsuit alleges that the use of a single dosage of the pseudoephedrine drug exacerbated the husband’s prostate problems. He experienced bladder distension, difficulty with urination and blood vessels burst in his bladder. As a result of his condition, he had to be admitted to the hospital for surgery, and required the use of catheters. Furthermore, he suffered nerve injury, which resulted in incessant pain coupled with disability, for two years until his death two years later because of an unrelated illness.

The pharmacy chain filed a motion in which it sought partial summary judgment. It requested that it be found not liable for the husband’s injuries because (1) the legal duty of care did not mandate the provision of sufficient advice regarding nonprescription medications, and (2) a legal principle, called the “learned intermediary doctrine,” protects the pharmacist from liability for failure to warn.

The court denied the motion. It reasoned that the pharmacist has a duty to use the reasonable amount of skill and care that would be exercised by a reasonably prudent pharmacist in a similar situation. It also said that the state pharmacy act contradicts the argument that a pharmacist is free from liability for giving advice to patients concerning nonprescription drugs. With respect to the “learned intermediary doctrine,” the court said that the pharmacy cannot enjoy the benefits of dispensing advice, and then conceal itself behind the doctrine in order to evade the outcome if the advice is improper. The court noted that the doctrine is applicable only to prescription medications.

Paul Greenberg is a Chicago medical malpractice lawyer with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit http://www.briskmanandbriskman.com/.

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