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This post comes from the non-Reed Smith side of the blog.

As we noted yesterday, we aren’t much for New Year’s resolutions.  But this blogger was recently invited to the home of friends who have a slightly different tradition.  On New Year’s Eve, as you leave their home, you are invited to take a slip of paper from a basket sitting by their front door.  On each paper is written a random word.  What you do with the word is up to you.  I was told some people tape them to their computer monitor or tack them on a bulletin board.  Others tuck them in their wallets or purses.  The idea is simply to contemplate the word.  What does it mean?  What does it mean to you?  Does it make you want to do something or not do something?  It is more about reflection than resolution.  Maybe that reflection will lead to something positive – maybe not.  But we find the exercise intriguing.  The idea that just one ordinary, everyday word might have a profound impact.  We are only day 5 into the New Year, but having a 5-minute daily time out to “contemplate” has so far been very relaxing.  If nothing else comes of it, that would still be a win.

And speaking of wins . . . . let’s talk about Hernandez v. Walgreen Company, 2015 Ill. App. LEXIS 986 (Ill. App. Ct. Dec. 28, 2015).  Here a single word made all the difference as well – duty.  Actually the lack thereof is what is important.  Suit was brought on behalf of the estate of the decedent who died allegedly from methadone intoxication.  Id. at **2.  Plaintiff sued the decedent’s doctor who had prescribed the methadone for back pain and the pharmacies that had filled the prescriptions.  Id.

Plaintiff claimed that the pharmacies had breached their duty of care by dispensing the medication in excess of recommended dosages, by failing to monitor the decedent’s prescription history, and by failing to warn either the decedent or his doctor.  Id. at **3-5.  The pharmacies moved for summary judgment and the trial court granted the motion finding no duty existed.  Id. at **9.  On a de novo review, the appellate court affirmed.

Neither the plaintiff nor the court was able to find any precedent to support the duty plaintiffs were urging be placed on the pharmacies.  In fact, the Illinois appellate court had previously “declined to impose upon a pharmacy, any duty to monitor patients, make medical decisions, or to warn a physician or a patient of excessive prescribed doses.”  Id. at **12.  The primary basis for this ruling is that the duty monitor, prescribe and warn lies with the physician – not the pharmacy.  The prescriber is the learned intermediary.  It is the prescriber who is charged with knowledge of both the medications being prescribed and the medical history of the patient and it is up to the prescriber to use his/her independent medical judgment to evaluate the patient’s needs, assess the risks and benefits, and appropriately prescribe and monitor drug usage.  “Placing those duties to warn on the pharmacist would only serve to compel the pharmacist to second guess every prescription a doctor orders in an attempt to escape liability.”  Id. at **13.   The opinion repeatedly emphasizes the “individualized medical judgment” of the prescriber which cannot be superseded or interfered with by the pharmacist.  The pharmacist should not be dropped into the middle of the doctor-patient relationship, especially “without the physician’s knowledge of the patient.”  Id. at **16.

Plaintiff tries two tactics to get around the no duty rule.  First, plaintiff attempts to rely on a case where the Illinois Supreme Court did find a pharmacist owed a duty to warn.  But that decision specifically stated it was a limited, narrow holding.  It involved a failure to warn the plaintiff about a drug’s contraindication for anyone with an aspirin allergy where the pharmacy was already aware the plaintiff had an aspirin allergy.  This situation did not require the pharmacy to learn about the plaintiff’s medical condition or make any “medical judgment.”  Id. at **19.  Indeed, the Illinois Supreme Court specifically said that case was different than a situation where “imposing the duty that the plaintiff sought would have required the pharmacist to warn that the drugs were being prescribed in excessive
quantities.”  Id. at **21.

Second, plaintiff cited to the Illinois Controlled Substances Act which requires pharmacists to send information to a central database for all controlled substances it dispenses.  The information in that database is then accessible by pharmacists.  Id. at **22-23.  Plaintiff’s argument was that since pharmacists can access the database, they should be required to do so and then be required to monitor patient’s prescriptions and warn of excessive use.  Id. at **22.  But plaintiffs’ argument overlooks key aspects of the Act.  Such as the provision that pharmacists “may, but are not required to, access” the database.  Id. at **23.   Or the section that states:  “nothing in this Act or Illinois law shall be construed to require a prescriber or dispenser to make use of this inquiry system.”  Id. at *824.  The court was unwilling to ignore the terms of the Act that directly contradict plaintiff’s duty argument.  Had the legislature wanted to impose such an obligation, they could have.  Instead, they “inserted provisions stating that the Act did not impose such duties.”  Id. at **27.

The final ruling is that pharmacies do not have a duty to monitor prescription history, to determine if prescriptions were excessive, or to warn patients or physicians of excessive use.  Id. at **30.  No duty, no liability.  While you contemplate that, I’ll contemplate “balance.”