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A pharmacy case from Florida caught our eye this week.  We still have fresh in our minds the survey that Bexis posted a few days ago of state laws limiting the liability of non-manufacturing sellers of prescription medical products.  It was an impressive collection, as Bexis-prepared surveys tend to be, and it covered the potential liability (or lack thereof) of distributors, suppliers, pharmacies, etc.  You know, anyone in the chain who did not manufacture the drug or device and who typically would have no role in developing the product or its warnings. It comes up a lot for us in the context of removal jurisdiction, where plaintiffs fraudulently join local or non-diverse defendants in an attempt to prevent removal to federal court.  The plaintiffs never—and we mean never—actually pursue claims against the local defendants, and we routinely resist their motions to remand cases to state court with arguments that there are no viable claims against mere pass-through sellers of pharmaceutical products and medical devices.

In this regard, the result in Oleckna v. Daytona Discount Pharmacy, No. 5D13-3057, 2015 WL 477841 (Fla. Dist. Ct. App. Feb. 6, 2015), is not helpful because it allows negligence claims against a pharmacy that did nothing more than fill prescriptions as they were written.  In Oleckna, the patient was being treated for stress, and his doctor prescribed Xanax and narcotic pain medication over a period of two years.  Id. at *1.  The patient, sadly, died allegedly “due to combined drug intoxication” of the prescribed medications, and his estate sued the physician who wrote the prescriptions and a pharmacy who filled many of them—allegedly more than 30 prescriptions.  Id. 

At some point the doctor settled.  Id. at *1 n.3.  The pharmacy, however, challenged the pleadings and argued that it owed the patient no duty other than properly filling his valid and lawful prescriptions.  Id. at *1.  What did the pharmacy do wrong?  According to the plaintiff, the pharmacy filled the prescriptions “without question, even though the prescriptions were issued too closely in time and days before [the patient] should have exhausted the preceding prescription.”  Id.  In other words, the patient was taking more pills than directed, which the pharmacy allegedly should have detected and done something about, such as call the doctor or (we guess) refuse to fill otherwise valid prescriptions.  The Florida trial court saw the pharmacy as we usually do—as a mere conduit for properly prescribed and compounded medicines.  It therefore dismissed the complaint without leave to amend.  Id. at *2.

The Florida District Court of Appeal reversed and ruled that the pharmacy owed the patient an independent duty of care.  The court spends most of the opinion parsing Florida cases, but its holding boils down to the following:  “Pharmacists are required to exercise that degree of care than an ordinarily prudent pharmacist would under the same or similar circumstances.”  Id. We confess that when we first read the opinion and the plaintiff’s allegations, we were prepared to agree with the Court of Appeal.  After all, it did not seem so outlandish to us that a pharmacy would owe a duty of reasonable care to patients who purchase prescription drugs.

Then we read the opinion, and despite our open minds, we came away with serious doubts.  For one thing, the sentence we quoted above is the kernel of the court’s holding, but for support the Florida court cited an ALR annotation, plus a case from Tennessee and a case from Utah.  Not exactly robust, and reliance on an ALR citation as primary support seems particularly result driven.  Id. at *2.  That’s only one step above quoting this blog.

More fundamentally, we wonder about the scope of the duty that the court created.  Do not forget that this pharmacy did nothing more than fill valid and lawful prescriptions, which the patient’s doctor kept writing over a period of years.  We can see imposing a duty to avoid mistakes in dispensing and compounding products, and one of the cases that the court cited provides a possible example—a pharmacy filled a prescription for narcotics that was dated four months prior, resulting in the patient receiving the medicine well after her doctor prescribed it.  Id. at *3 (citing Dee v. Wal-Mart Stores, Inc., 878 So. 2d 426 (Fla. Dist. Ct. App. 2004)).

But the duty imposed in Oleckna is considerably broader and somewhat nebulous. As the court put it, “We . . . hold that a pharmacist’s duty to use due and proper care in filling a prescription extends beyond simply following the prescribing physician’s directions.”  Id. at *3.  Well, what does that mean?  We know from the facts of the case that it means keeping track of the volume and frequency of narcotics prescriptions.  But where does the duty end?  Does a pharmacist have a duty to suggest different dosage based on what he or she knows about the patient?  Does a pharmacist have a duty to suggest alternate drugs or otherwise second guess physicians?  Does a pharmacist have a duty to question a patient about other medications he or she may be getting from other pharmacies, which is common drug-seeking behavior?

Does a pharmacist have a duty to warn of a prescription drug’s known and reasonably knowable risks?

The answer to all these questions clearly is “No.”  Seee.g., McLeod v. M.S. Merrell Co., 174 So. 2d 736, 738-39 (Fla. 1965); Estate of Johnson v. Badger Acquisition of Tampa LLC, 983 So. 2d 1175, 1183-1184 (Fla. App. 2008); Johnson v. Walgreen Co., 675 So. 2d 1036, 1037 (Fla. App. 1996); Pysz v. Henry’s Drug Store, 457 So. 2d 561, 562 (Fla. App. 1984); Bailey v. Janssen Pharmaceutica, Inc., 2006 WL 3665417, at *4 n.2 (S.D. Fla. Nov.14, 2006) (applying Florida law); Layton v. SmithKline Beecham Corp., 2006 WL 2194498, at *3 (M.D. Fla. Aug. 2, 2006) (applying Florida law).

Duty is at bottom a question of public policy, and it will come as no surprise to our readers that the public policy to rule all public policies in this arena is the learned intermediary doctrine.  The LID places physicians at the point when it comes to prescribing prescription drugs because they are in a position to understand the risks and benefits and assess them in making prescribing decisions for their particular patients.  That includes what to prescribe, in what dose, at what frequency, and for how long.  We also have federal preemption (another DDL blog public policy favorite) under Bartlett, which holds that defendants cannot be liable for allegedly inadequate warnings where federal law prohibits them from influencing the content of drug labeling.  Pharmacies should be in this boat.  Prescription drug manufacturers, for their part, owe a duty to warn physicians adequately.

When establishing new duties, we ought not disrupt these rules, which is why Oleckna may seem okay on its surface, but in fact introduces an unwelcome uncertainty in the law by announcing a “duty” that the court does not define.  Pharmacies have a duty of care under Florida law, but it is anyone’s guess what that duty includes or how far it may extend.  It seems a rule that draws a bright line at the duty to accurately fill lawful and valid prescriptions has much to commend it, and on full reflection, we agree with the trial court’s decision to draw that line.  To go back to where we started, we do not expect that the opinion will have much impact on removal jurisdiction and fraudulent joinder. Sure, the many prescription drug users in Florida can try to join local pharmacies and plead some bogus breach of duty, but if all the plaintiff can allege is the dispensing of drugs that allegedly caused injuries, they will not get very far.