Our learned intermediary rule “head count” lists Oklahoma as solidly in support of the doctrine:
Oklahoma: Edwards v. Basel Pharmaceuticals, 933 P.2d 298, 300-01 (Okla. 1997); Tansy v. Dacomed Corp., 890 P.2d 881, 886 (Okla. 1994); McKee v. Moore, 648 P.2d 21, 24 (Okla. 1982); Cunningham v. Charles Pfizer & Co., 532 P.2d 1377, 1381 (Okla. 1974).
The “head count” lists every state supreme court decision to follow the learned intermediary rule, and the Oklahoma Supreme Court’s four decisions applying the doctrine are exceeded only by Ohio’s six (plus a statute) and Kansas’ five opinions.
Oklahoma courts had never applied the rule to pharmacists, however. As we’ve discussed before, the learned intermediary rule helps pharmacy defendants by precluding claims that pharmacies, as intermediate sellers of prescription drugs, should have some sort of independent duty to warn patients. Just as the rule recognizes physicians as learned intermediaries in passing along relevant warnings from prescription medical product manufacturers to their patients, learned intermediary principles also preserve the physician-patient relationship by precluding imposition of independent warning duties on other possible interlopers – such as pharmacies – who otherwise might be legally required to confuse patients by providing information that conflicts with what prescribing physicians tell their patients. Back in 2011, on occasion of the Arkansas decision Kowalski v. Rose Drugs, Inc., 378 S.W.3d 109 (Ark. 2011), we did a 50-state survey post on this issue, and Oklahoma was missing in action.
Not any longer. In Carista v. Valuck, ___ P.3d ___, 2016 WL 6237855 (Okla. App. Oct. 20, 2016), the court applied the learned intermediary rule to pharmacy-related claims in essentially the same fashion as the previous cases in our survey post. Carista involved a plaintiff (or more precisely, a plaintiff’s decedent) who took too many painkillers – it appears, from the opinion, illegally − overdosed, and then attempted to blame someone else, in this case the pharmacy where the prescriptions were allegedly filled. The case was dismissed, and the plaintiff appealed. Recognizing the issue as one of first impression, the court followed what it concluded, rightly, was the majority rule:
Many other states appear, however, to have adopted the [learned intermediary] doctrine, with limited exceptions, to shield pharmacists from being required to “second guess” a physician’s medical decisions embodied in an otherwise authorized and legally made prescription.
2016 WL 6237855, at *2. The court also followed what it described as the two major exceptions to the protection that the learned intermediary rule affords pharmacists: (1) filling a prescription that is “unreasonable on its face” (usually involving dosage), and (2) where “the prescribed drug is clearly contraindicated, and the pharmacist has sufficient knowledge of the patient’s condition and history to know this.” Id. (footnote omitted).
As in Kowalski, the court in Carista considered and rejected negligence per se-type arguments based on various pharmaceutical regulations. Purported liability under a “pharmacists manual” issued by the Drug Enforcement Administration was easily swatted aside:
We find no reported case in any jurisdiction of the United States utilizing or examining this USDEA publication as a source of law, guidance, or persuasive authority in a tort case, or in any other case. We further have no copy of this document in the appellate record. We decline to take the unprecedented step of declaring that a federal publication of unknown content establishes a tort not previously recognized by our Supreme Court.
Carista, 2016 WL 6237855, at *3 (emphasis original).
The Oklahoma Pharmacy Act also did not support liability, as it was “intended to define activities that are subject to regulation by the” state board and not to “create statutory duties in a tort context.” Id. at *4 (citation, footnote, and emphasis omitted). Oklahoma administrative regulations governing the practice of pharmacy fared no better as sources of a “radical” extension of tort liability.
We find no indication that the Board of Pharmacy intended to create a duty for pharmacists to question clients regarding illegal drug use, or to second-guess the judgment of a doctor in prescribing drugs to persons who may also abuse illegal substances. Pharmacists are neither physicians nor counselors on the use of illegal drugs. . . . To place the responsibility on a pharmacist to act as a virtual “second medical opinion” when filling an otherwise facially valid prescription would radically change the accepted duties of a pharmacist.
Id.. The sort of “broad expansion” pharmacists’ tort obligations sought by the plaintiff was thus both “unsupported” by Oklahoma law and “outside the mainstream of other states’ laws.” Id. at *5. It “would result in pharmacists acting as a form of second medical opinion,” and also would “enmesh pharmacists in the practice of medicine” – precisely what the learned intermediary rule in this context strives to avoid. Id.
We couldn’t have said so better ourselves.
After all that, however, the court tossed the plaintiff a bone. It allowed the plaintiff a shot at amending the complaint to attempt to state a case under the two recognized exceptions for pharmacy liability, since the learned intermediary rule, while “broad . . . is not absolute.” Id. at *54. If, as the court suggests, the facts involve “persons who may also abuse illegal substances,” id. at *4, that will not be easy, since in our experience such cases often involve persons who obtain prescriptions from multiple sources and attempt to hide them from the same persons – such as pharmacists – whom they later seek to charge with liability.
Along these same lines, as a parting shot, we also recommend reliance on the in pari delicto defense, which (as we discussed here) prohibits plaintiffs from recovering for injuries caused by their (or their decedents’) criminal behavior. See Tillman v. Shofner, 90 P.3d 582, 584 (Okla. App. 2004) (“where parties to an immoral or illegal transaction are in pari delicto with each other, each is estopped . . . to take advantage of his own moral turpitude, illegal act, or criminal conduct for purposes of recovering damages”).