Is anything on the back bench safe from litigation? - Opinion - Column

Litigation involving pharmacies and pharmacists is one of the largest growth areas in nationwide litigation. In the old days (which was probably less than five years ago), pharmacies were sued only when a patient received the wrong dosage or wrong medication. Unfortunately, at feast for retailers, things have changed. The same people who are behind corporate securities litigation involving Enron and WorldCom are now (cover your eyes!) coming after pharmacies for the sale of practically every product exiting a retailers' front door.

There is ongoing nationwide litigation regarding prescriptions such as Baycol, Rezulin, Vioxx, Fen-Phen, Propulsid, OxyContin and Lotrinex, just to name a few. Plaintiffs' counsel have tried to create novel theories of recovery against pharmacies, mostly in the hope of finding more "deep pockets' for settlement. The question arises: Can a pharmacy be liable for selling a "defective" prescription? Sadly, the answer is maybe.

Under the traditional common law, many state and federal courts have held that pharmacists have no generalized duty to warn their patients of potential hazardous side effects associated with a particular drug. Courts supporting this position rely on the "learned intermediary doctrine," which leaves it to prescribing physicians to advise patients adequately of relevant drug side effects. As you might agree, doctors understand the dangers involved in the use of a particular drug, and are in a better position to advise patients primarily. Some states also have precluded liability for merely selling a "defective" prescription. In California, New York and Florida, for example, courts have ruled that a pharmacy cannot be liable for selling what plaintiffs claim was a defective pharmaceutical, a typical seller, who normally is liable, those courts held that a pharmacy is different-its dominant role is providing a service, rather than merely selling a product.

But many jurisdictions, like Nevada, are exploring the 'modern" theory, proposed by plaintiffs' lawyers, that pharmacists should be required to weave themselves into the fabric of the doctor-patient relationship and to take on an added level of responsibility of warning of all potential side effects and take on liability for selling a defective prescription.

As a lawyer representing pharmacies, I find this novel theory troubling. Imagine the patient coming to the pharmacy with a Baycol prescription in early 2001. According to plaintiffs' lawyers, the pharmacist should not only have warned about all the potential side effects of the drug, but also should have told the patient that, in the pharmacist's opinion, the drug could have been safer. Indeed, many lawsuits now claim that the pharmacist should never have filled the prescription at all. I can assure you that many more people would have sued for not getting their prescription, and for the risks attendant therein, rather than for the rare side effects associated with taking the drug.

If pharmacies may be held liable for the drugs they dispense, some of them, to avoid liability, might restrict availability by refusing to dispense drugs that pose even a potentially remote risk of harm, though such medications may be essential to the health or even the survival of patients. I believe it's crucial that chain pharmacies and their lobbyists get seriously involved in crafting legislation that precludes pharmacy liability in these areas. he allure to do so will be extremely costly, in attorneys' fees, in potential settlements and verdicts, as well as in the professional welfare of the pharmacist.

Jonathan Klein is an attorney with Kelly, Herlihy & Klein in San Francisco, representing retailers in pharmacy, employment and premises liability litigation.

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