For many years, addiction and the overdoses that so often accompanied them were viewed as a moral failure of the addict. In recent years, our understanding of addiction as a medical condition has evolved. As such, we are seeing an increasing number of instances in which medical professionals – including physicians and pharmacists – are being held accountable for negligence that played a causal factor in overdose.
In 2013, Walgreens paid $80 million to settle a claim with the Drug Enforcement Administration that it failed to control opiod pain reliever sales at certain locations. Now, the pharmacy is facing lawsuits for negligence in which customers died of overdoses after consuming large quantities of powerful drugs supplied by company pharmacists.
Last year, the husband of Lisa Robin Kelly, the actress best known for her stint on “That ’70s Show,” filed a negligence lawsuit against the rehabilitation center where she died of an overdose in 2013, alleging staffers were improperly trained to dole out those drugs.
More recently in Florida, the Fifth District Court of Appeal weighed the case of Oleckna v. Daytona Discount Pharmacy. Although a trial judge dismissed with prejudice the claim by a personal representative of a decedent’s estate against the pharmacy that supplied the drugs on which decedent overdosed, the appellate court reversed.
According to court records, decedent began receiving treatment with a certain doctor in 2009, and at that time was diagnosed with stress syndrome. For this condition, he was prescribed Xanax, Hydrocodone and Oxycodone. Throughout the course of the next two years, the physician allegedly routinely prescribed these drugs to decedent before he would have finished the last batch, were he taking them as directed.
Plaintiff alleges decedent’s pharmacy never raised an eyebrow in fulfilling some 30 prescriptions – all from the same doctor – too closely to the time and days before he should have exhausted the preceding prescription.
In the spring of 2011, the patient died as a result of an overdose to Xanax and Hydrocodone.
The subsequent wrongful death lawsuit against the pharmacy asserted defendant failed to use proper care in filling and dispensing drugs, failed to exercise the level of care and skill recognized by similar and reasonably prudent pharmacy professionals, filled prescriptions that were unreasonable in light of the circumstances, failed to warn decedent of the dangers, failed to comply with relevant regulatory statutes and put decedent at an unreasonable risk of foreseeable harm.
Defendant filed a motion to dismiss on grounds it owed no duty of care to decedent beyond properly filling lawful and valid prescriptions. Trial court granted this motion, and plaintiff appealed.
In reversing the trial court, appellate justices noted pharmacies do owe customers reasonable duty of care and are required to exercise that care to such a degree that an ordinarily prudent professional in the same position would do in the same situation.
In reaching this conclusion, justices relied on the 2004 Fla. 1st DCA decision in Dee v. Wal-Mart Stores Inc., in which the court weighed the case against a pharmacy that fulfilled a prescription for a powerful painkiller that had no time limit. The patient died of an overdose, and her estate argued the prescription was unreasonable on its face, and therefore the pharmacy’s actions in continuing to fill it was a breach of its duty of care. The court agreed, finding this to be true even though the prescription was lawful as written.
Several other case law examples were cited, with the 5th DCA ultimately noting pharmacies that fill prescriptions without question – even lawful prescriptions – may have indeed violated a duty of care. Thus, trial court erred in granting summary judgment to defendant. The judgment was reversed and the case remanded for trial.
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Oleckna v. Daytona Discount Pharmacy, Feb. 6, 2015, Fla. 5th DCA
More Blog Entries:
Cromer v. Children’s Hosp. Med. Ctr. of Akron – Foreseeability in Medical Negligence, Feb. 10, 2015, Palm Beach Wrongful Death Lawyer Blog