Florida Negligence Claims Against Pharmacies

The four elements of negligence are duty, breach, causation, and damages. A plaintiff must prove all four elements. Sometimes the most fundamental issue of a negligence claim is in dispute: if the defendant even

In Oleckna v. Daytona Discount Pharmacy, a man was being treated by a doctor for “stress syndrome” with prescriptions for Alprazolam and Acetaminophen combined with either Oxycodone or Hydrocodone. The pharmacy allegedly filled thirty or more prescriptions written days before the previous prescription should have been finished. The man ultimately died as the result of a combined drug intoxication of Alprazolam and Hydrocodone.

His personal representative sued both the doctor and the pharmacy on behalf of the estate. The doctor settled, but the pharmacy did not. The plaintiff alleged that the pharmacy owed the man various duties, including using proper care in filling the prescriptions; exercising the same level of care as a reasonably prudent and similarly situated pharmacist; not filling unreasonable prescriptions; warning of the dangers; complying with the pharmacy’s policies and procedures and relevant statutes and regulations; and not subjecting the man to unreasonable risk of harm.

The pharmacy moved to dismiss, arguing that, pursuant to case law, its duty to the customer was limited to properly filling valid prescriptions. The trial court granted the motion, finding that case law had limited the duty owed by a pharmacist, and that he allegations in the case did not support a violation of that duty.

Pharmacies owe their customers a duty of reasonable care and must exercise the same level of care as would be used by an ordinarily prudent pharmacist under the same or similar circumstances. The district court distinguished McLeod v. W. S. Merrell Co., Division of Richardson-Merrell, Inc., the case cited by the defense, because the plaintiff there sought to hold the defendant strictly liable for failure to warn of potential dangers of the medication it dispensed pursuant to a prescription. McLeod had noted that there might be a negligence claim against a pharmacist if he or she failed to use proper care in filling the prescription, but did not indicate how such a claim might arise.

Other districts have addressed that issue. The First District has found that allegations that, four months after the prescription was written, a pharmacy filled a prescription of fentanyl with no time limit could support a cause of action of negligence. The Fourth District found that there may be a negligence claim against a pharmacy that had filled numerous prescriptions for narcotics within a short period of time without warning of the potential dangers.

In the present case, the Fifth District reversed and remanded the case, finding that the trial court erred when it dismissed the case against the pharmacy.  The court specifically noted, however, that the plaintiff’s claims may not survive a summary judgment motion, but stated that it would not hold that the pharmacy had not been negligent in filling the prescriptions as a matter of law.

Source: http://www.florida-personal-injury-lawyer-blog.com/

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Republished by the Law Office of Scott A. Ferris, P.A.