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David Mittleman
David Mittleman
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Pharmacist and Pharmacy Liability

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When you go to your local pharmacy to have a prescription filled, you trust that those tasked with providing you with your necessary medication—the pharmacy and pharmacist—are doing so in a safe and careful manner.  Unfortunately, as we often see, negligence on part of both pharmacy and pharmacist are on the rise and create a significant problem in today’s healthcare industry.

But one must ask, where does this negligence perpetuated by those entrusted to provide you with your necessary medication leave the harmed patient?  Traditionally, courts all over the United States were hesitant to hold pharmacists or pharmacies liable for personal injuries secondary to their negligence.  However, as the health care industry continues to change, so do judicial holdings concerning pharmacist and pharmacy liability.

A case out of Florida illustrates this changing trend.  In this case, a Daytona Pharmacy is being accused of negligence for filling lawful prescriptions for prescription painkillers.  Eventually, the patient for whom these prescriptions were written died of an overdose.  The mother of the individual who overdosed filed a negligence action against the pharmacy claiming they negligently refilled his prescriptions, therefore allowing him to overdose.  The underlying negligence action was based on the pharmacy’s failure to act as a “reasonably prudent pharmacist” in filling over 30 prescriptions for powerful painkillers when they had actual or constructive knowledge that prior prescriptions had not been depleted.

As a general rule, in Michigan pharmacists are not liable for correctly filling a prescription.  See Lamire v. Garrard Drugs, 291 NW2d 103, 105 (Mich. Ct. App. 1980).  However, in recent years courts have carved exceptions to this general rule and at times held pharmacists/pharmacies liable for neglience in Michigan.  This expansion is illustrated in the 2008 case of Kunzar v. Raksha Corporation.  In that case, the Michigan Supreme Court held that a pharmacy is not a licensed health facility/agency, therefore it cannot be held directly liable for medical malpractice.  However, the Court held that the pharmacy can be held directly liable for ordinary negligence for operating without having a licensed pharmacist on site and for allowing non-pharmacist employees to dispense medications.

Based on these changing trends, specifically relating to negligence theory and pharmacies, it would not be surprising to see many states follow the example set by recent courts in holding pharmacies and pharmacists liable for negligence subject to a reasonable standard of care.  Considering the expanding and increasing role of pharmaceuticals in today’s health care industry, it would be this type of protection may be seen as a way to ensure pharmacists are discharging their very serious duty in a safe and prudent manner.

Pharmacy and pharmacist negligence cases can be very complex and require the utmost experience and competency.  Over the years, ChurchWyble P.C. has assisted victims and their families in pursing claims against negligent pharmacies, pharmacists and prescribing doctors.  In doing so, we have been successful holding pharmacists and pharmacies accountable for their actions.

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