Pharmacists are Shaking in their Lab Coats

The Wall Street Journal reports that a 35-year-old woman bought close to 4,500 painkillers over the course of a year, recklessly decided to drive a car, and ultimately killed one man and severely injured another. Can these men sue the woman? Yes. Can they sue the pharmacy that filled her prescriptions? Not as easy to answer. Sanchez v. Wal-Mart Stores, pending before the Nevada Supreme Court, may be the first United States case to consider whether pharmacies can be held liable for a fatal accident caused by a customer's prescription drug abuse.

Nevada law requires pharmacies to report prescription records each month, and this information is analyzed by the state's Prescription Controlled Substance Abuse Prevention Task Force. The Task Force looks for any signs of abuse, such as purchasing the same drug from multiple pharmacies or filling multiple prescriptions of the same drug within a short period of time. If there is enough suspicion of abuse, the Task Force will send a letter to those pharmacies that the patient has frequented, informing them of the potential problem. However, as the Journal reports, the pharmacies are not given any direction as to what procedures to implement upon receiving such a letter. Although many states do not even have a task force to perform this service, online prescription tracking systems are becoming widely available, and the accessibility of such information is raising questions as to a pharmacy's duty to the general public.

In terms of the liability to a third party injured as a result of a customer's drug abuse, there seems to be three potential theories: strict liability, breach of warranty, and negligence. Strict liability is currently applied in several states under Section 402A of the Restatement (Second) of Torts, but it generally extends to harm suffered by the actual consumer of a product. This can apply if a pharmacist actually erred in filling a prescription. Thus, extending strict liability to someone that a consumer injures seems like quite a stretch--particularly since, in the context of a pharmacist’s duty to warn, courts have held that holding pharmacies strictly liable would unfairly place them in a "learned intermediary" position for which they are not properly trained. See, e.g., In re N.Y. County Diet Drug Litig., 262 A.D.2d 132, 132-33 (N.Y. App. Div. 1999) (strict liability inappropriate where there is no indication the pharmacists "failed to fill the prescriptions precisely as they were directed by the manufacturers and physicians"); see also Leesley v West, 518 N.E.2d 758, 763 (Ill. App. Ct. 1988) (describing drug warnings as a responsibility of the doctor). Breach of warranty also seems to be an improper basis for liability because the consumer is relying not on the pharmacist, but on the skill and judgment of the doctor in terms of the type and amount of drug. E.g. Leesley, 518 N.E.2d at 763.

Negligence is where it gets tricky. The argument under a theory of negligence would be that pharmacies were privy to information raising red flags as to potential drug abuse and did nothing to stop it. However, I have several concerns about the consequences of such an approach. First, there is a certain element of trust in the doctor-pharmacist relationship. The doctor writes a prescription, and the pharmacist has to fill it, so questioning an actual prescription may equate to doubting the doctor. Also, if pharmacies are worried about liability, they may just choose not to stock certain drugs that are most commonly abused to avoid having to provide them in the first place. Finally, pharmacies have considered raising the prices of prescriptions to compensate for an anticipated increase in lawsuits.

I think that if pharmacies are to be held liable, the liability must be narrow and focused. I commend Nevada for instituting a task force to stem the expansion of prescription drug abuse, but I think it now needs to work on establishing some sort of protocol for pharmacies to follow when they receive a warning. Should they not fill the prescription? Should they call the doctor to double check that the prescription is accurate? Either way, I think that it will be easier for courts to then impose liability for violating the guidelines if states can offer guidelines on how to approach a potential drug abuser.

The opinion in Sanchez is supposed to be issued by the end of the year; you can bet that drugstore chains across the country are anxiously awaiting the result.