Pharmacists' legal dilemma: to warn, or not to warn?

Drug Store News, Feb 20, 1989 by Barbara White

Pharmacists' legal dilemma: TO WARN, OR NOT TO WARN?

Pharmacists are torn between their natural inclination to warn patients about the drugs they dispense, and the possible legal ramifications this holds.

Pharmacists feel that warning patients helps elevate their profession to a more clinical level. Past cases have held that pharmacists do not have a legal duty to warn, but several cases are pending that may place pharmacists in a legal bind.

The desire to elevate the profession is strong. More students are opting for the additional year of pharmacy school and the Pharm.D. degree. More pharmacists are putting a name on what many did all along - patient consultation, which ties into the issue of pharmacists wanting the public to know that they are drug specialists. The trend toward more patient consultation is pushing pharmacists out from behind the counter to areas in the store where they can consult with patients on a one-to-one basis.

Yet there is one word that can make many pharmacists quickly scurry back to the the glass-walled security of the prescription department: liability.

For as long as most pharmacists can remember, as long as they filled a prescription properly, they had nothing to worry about when it came to liability or malpractice. "Almost every case brought against pharmacists before 1982 dealt with a prescription being filled improperly," according to David Brushwood, an attorney who also serves as an associate professor at the West Virginia University School of Pharmacy.

"Since 1982, we have seen that filling a prescription properly is not enough," he said.

Pharmacy may be on the threshold of a new approach to the practice. Over the past few years, according to Brushwood, several cases dealing with the pharmacist's duty to warn have come before the courts.

In the 1982 New York case, Hand vs. Krakowski, a pharmacist was found to be negligent for dispensing central nervous system depressants to a customer he knew to be an alcoholic. The court found that since the pharmacist knew of the contraindication between the drug and alcohol, he should have warned the patient.

A 1986 case brought the point home again. In Riff vs. Morgan Pharmacy, a pharmacist was found negligent for failing to warn the patient about the accepted maximum safe dosage of a potentially toxic prescription drug.

Pharmacists need not fear an onslaught of cases charging them with failing to warn patients, according to experts, but it wouldn't hurt to keep an ear to the ground.

"I don't see more cases dealing with duty to warn, but I'm surprised that I don't," said Nicholas Lynn, a Chicago attorney and pharmacist.

"Pharmacists need not worry too much about increasing their liability since it is being suggested at a time when the courts are slow to expand the liability of any profession," Brushwood said. "The courts focus narrowly and almost always on the plaintiff who says that the pharmacist's duty is to counsel and warn, while pharmacists see their duty as filling the prescription correctly. The courts have generally agreed with the pharmacist."

"If you start with the proposition that pharmacists don't have a duty to warn, the onus is off the pharmacist," said Lynn. But as a pharmacist, Lynn is not sure the typical pharmacist is happy about that.

"With more people opting for the Pharm.D. degree, more is expected. There is a salary increase and an increase in expertise. One should also anticipate an increase in liability," he said. "What pharmacists offer that is valuable is the knowledge that they have."

"My personal criticism is that there is often too much time spent on manual tasks rather than on imparting that knowledge to the public. To spend five years in school and not to use that knowledge is a shame," he said.

The question then becomes: Are pharmacists merely retailers of drugs or are they specialized professionals who have not only the privilege of the profession, but the responsibility inherent in the privilege?

Or, as Larry Simonsmeier, professor of pharmacy at the Washington State University School of Pharmacy, puts it: Is the profession setting standards for itself that the courts are failing to recognize?

A case in Washington

A case before the supreme court in the State of Washington seems to be asking the same question and splitting the opinion of pharmacists.

The case, McKee vs. Gerald Sidran and Leonard Mezistrano d/b/a Seward Park Pharmacy, was filed in the 1970s and is now under appeal.

The McKee case charges that the pharmacists were negligent not to warn the patient that a prescription appetite suppressant prescribed by her physician

for nine years might cease to be effective after a long period of time and could become addictive.

A lower court found that the pharmacist had no duty to warn. The plaintiff appealed and the case is now before the state supreme court. The court, dissatisfied with the argument that the pharmacists has either all or no duty to warn, made an unusual move and asked the Washington Pharmacy Association to file a friend-of-the-court brief.