We usually represent manufacturers, not pharmacies, in personal injury cases, so why should we care whether pharmacies can be on the hook? Well, if the pharmacy’s presence in the case prevents federal diversity jurisdiction, then solid case law shielding the pharmacy from liability will be crucial to our argument that the pharmacy was fraudulently/improperly joined. That is why we have blogged about pharmacy cases, including here and here, for example. Plus, the world is better off with a little less sloppy liability.
Now be prepared to argue that position in Washington state, because today’s case, Long v. Rite Aid Headquarters Corp., 2019 WL 1370442 (Wash. Ct. App. March 25, 2019), will be of service to the legion of defense hacks. The court held that when physicians prescribe medications for their patient, “it is the physician – a learned intermediary – and not the pharmacist who has the duty to advise the patient of potential adverse effects.” The pharmacy “had neither a general common law nor a statutory duty to warn” the plaintiff about the potential adverse side effects of a prescribed medication. It is a straightforward, unsurprising ruling, but the convoluted course of Washington law made it a little bit more complicated.
The plaintiff took an antibiotic for a tooth abscess. The label for the antibiotic warned that the antibiotic could cause diarrhea (no surprise there) but if that happens, the patient should not take antidiarrheal products. In the long case, the patient did develop diarrhea, did take Imodium, an antidiarrheal product, and did become exceedingly ill – so much so that doctors ended up performing an ileostomy and removing the plaintiff’s large colon. The plaintiff sued doctors, hospitals, and the pharmacy. The pharmacy filed a motion to dismiss.
The plaintiff claimed that the pharmacy breached the accepted standard of care when its pharmacists failed to warn her of the adverse side effects of the antibiotic. She relied on a Washington law requiring the pharmacist to “directly counsel the patient or patient’s agent on the use of drugs or devices.” The law also requires the pharmacist to “determine the amount of counseling that is reasonable and necessary under the circumstance[s].” To support her argument, the plaintiff hired an expert pharmacist to opine that Washington’s phramacy counseling requirement “at a minimum must include the most significant warnings of the drug.”
The pharmacy cited Washington’s adherence to the learned intermediary doctrine. Under that doctrine, even if pharmacists have “a duty to accurately fill a prescription, and to be alert for clear errors and mistakes,’ pharmacists do not “have a duty to question a judgment made by the physician as to the propriety of a prescription or to warn customers of the hazardous side effects associated with a drug.”
The Long court seemed to be with the defense position all the way. It reasoned that the duty to warn about potential adverse side effects must be the sole obligation of the prescribing physician because the physician “may often have a valid reasons for deviating from the drug manufacturer’s recommendations based on a patient’s unique condition.” Additionally, excessive warnings by a pharmacist “could cause unfounded fear and mistrust of the physician’s judgment, jeopardizing the physician-patient relationship and hindering treatment.” How refreshing to see a court acknowledge the dangers of over-warning
Moreover, a pharmacist lacks the necessary knowledge concerning a patient’s medical background “to question the physician’s judgment regarding the appropriateness of each customer’s prescription.” For example, physicians sometimes prescribe medications for an off label use. That can be completely appropriate. It can be within the standard of care. Should a phramacist butt in, mindful of FDA restrictions against off label marketing, or mindful of plaintiff attorney efforts to demonize off label use, and “counsel” the plaintiff against off label use? That would be absurd.
The only reason the Long case takes a long time to read is because Washington’s laws regarding pharmacy duties have changed over time, and the plaintiff cleverly exploited the confusion. But the Long court made short work of the plaintiff’s arguments, sorted things out, and arrived at the inevitable, correct result. The Long court even rustled up a Ninth Circuit opinion that held that the plain language of the Washington law “restricts a pharmacist’s role to counseling concerning the safe and effective administration of the medication, and does not impose any regulation to explain medical risks.”
When even the Ninth Circuit is against a plaintiff, it’s all over but the shouting. The Long court dismissed the case against the pharmacy.