The Utah Supreme Court has ruled that a pharmacy may be held liable for failing to warn a patient that a drug had been withdrawn from the market by the FDA. The court said the “learned intermediary” doctrine does not shield the pharmacy. In the case before the high court the patient sued the pharmacy for negligently filling his prescription for fen-phen and failing to remove the product from its shelves or warn him that the drug had been withdrawn from the market by the FDA and the manufacturer. The pharmacy argued that the learned intermediary doctrine should apply.
The doctrine exempts pharmacists from liability where a licensed physician has prescribed a drug. The Utah court said that, although the doctrine has been applied to strict products liability cases, there is a trend to limit its application in negligence cases. In that regard, the Utah court held:
The majority of recent decisions discussing the [learned intermediary] rule … have recognized limits or exceptions to its scope in the negligence context, concluding that its protections extend only to warnings about general side effects of the drugs in question, but not to specific problems known to the pharmacist such as prescriptions for excessively dangerous amounts of the drug or for drugs contraindicated by information about a patient. … We conclude that this is such a case. … A pharmacist owes the customer a duty of reasonable care with respect to the sale of drugs not authorized for sale by the FDA or the manufacturer.
However, a recent Alabama case decided in February of this year reached a totally different result. The Alabama Supreme Court held in that case out of Mobile that a hospital pharmacist was not responsible for the death of a patient who had been prescribed a drug by a doctor. The pharmacist allegedly had given the patient incomplete “dosing information” for the prescribed medication. Thus, the hospital’s liability was cut off for their pharmacist’s alleged breach of duty. A jury verdict in the case was reversed and the learned intermediary doctrine applied.
Source: Lawyers Weekly
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