As the American drug industry provides more drugs to the marketplace for varying ailments, it becomes more important that they are dispensed accurately. There are many issues for pharmacists and pharmacy technicians to consider, like similarly sounding drugs, drugs that look alike, and various dosages of the same drugs. These issues can cause confusion and risk wrongly dispensing a prescription. There are also issues with drugs that are correctly dispensed but cause injuries. In the event of an injury or death that results from a prescription drug, here is an overview of several theories a plaintiff might try to pursue for a remedy against the pharmacist or the pharmacy. Many states have different laws and the facts of the case will determine the final outcome, so it is best to seek the advice of an attorney immediately.

Strict Liability

Generally, pharmacists are not going to be liable for injuries under the theory of strict liability in accordance with the Restatement (Second) of Torts. As a rule, resellers, wholesalers, and distributors are liable for creating a product that causes harm to a consumer. Pharmacists would be considered suppliers and might theoretically be liable. Some courts have not considered pharmacists sellers but rather simply dispensers of drugs. They may also be considered an exception under the Restatement as the seller of an inherently dangerous product has been held not to be strictly liable when they are merely providing that product to the public. Many states have laws that specifically protect pharmacists from liability in these situations. Some courts have also reasoned that assigning liability to a pharmacists would intrude upon the doctor-patient relationship, as doctors are assumed to be the in the best position to determine the correct drugs to prescribe to their patient.

Breach of Warranty

This claim has been held to be equally inapplicable to pharmacists for the reason that the prescription hinges on the relationship between the patient and the doctor.

Negligence

The best chance for a claim to survive is based on a negligence claim. However, this does not mean that most claims will be successful. In order for a plaintiff to bring a claim, the pharmacist or the technician must have been negligent in the performance of their duties. For many courts, this means that they will only assign liability in the event of a wrong prescription dispensed. Some courts have said that it is not the duty of the pharmacist to question the prescription while some have assigned liability for a failure to warn a patient for potential overdoses and contra-indications.

Restatement (Third) of Torts

The newest Restatement provides more clarity for plaintiffs looking to bring a claim against a pharmacist. A pharmacist may be liable for an injury as a result of a drug if at the point of sale the drug contained a manufacturing defect, or if the pharmacist failed to exercise reasonable care at the point of sale.

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This article is for general informational purposes only and is not to be construed as legal advice. Do not rely on the above information as all cases are different and different laws apply to different cases.

Consult an attorney in your area for further guidance. If you were injured from prescription drugs please call one of our attorneys at David K. Kremin & Associates, and we will give you a free consultation. We never charge unless we collect for you. Please call 1(800) ASK-A-LAWYER or 1(800)275-2529.