Riff v. Morgan Pharmacy

508 A.2d 1247 (Pa.Super. 1986).

Id. at 1253.

Id.

Nonfeasance is the failure to do that which there is a legal duty to do. Several courts have recognized that pharmacists' monitoring of physicians' prescriptions is of benefit to the patient, but they have not imposed a legal duty to monitor. See, Patterson Drug Co. v. Kingery, 305 F.Supp. 821 (W.D. Va. 1969); Supermarkets General Corp. v. Sills, 225 A.2d 728 (N.J.Super. 1966). A duty to monitor was recognized in Speer v. United States, 512 F.Supp. 670 (N.D.Tex. 1981), aff'd, 675 F.2d 100 (5thCir. 1982), but causation was not proven, and the pharmacist was not held liable. But several commentators have predicted the evolution of pharmacist liability for non-feasance. See Greenfield & Hirsh, Pharmacist Liability in Tort, Medical Trial Technique Quarterly 29: 434 (1983); Cerullo, The Pharmacist's Responsibility to the Patient, Trial 17:31 (June 1981); Zimmerly, Lessening Liability Associated with New Drugs and Drug Reactions, Journal of Legal Medicine 4:25, 27 (January 1976).

Misfeasance is the improper performance of an act. Traditionally pharmacists have been held liable for dispensing the wrong drug, or the right drug in the wrong strength, or the right drug with the wrong directions. These routine misfillings raise what is virtually a presumption of liability, with little room to base a defense on professional judgment. See, Pharmacist Liability, American Jurisprudence: Trials 32: 375 (1985); Annot., American Law Reports 3: 4th 270 (1981).

The appellant would seem to argue that a pharmacy is no more than a warehouse for drugs and that a pharmacist has no more responsibility than a shipping clerk who must dutifully and unquestioningly obey the written orders of omniscient physicians. Such is not the case.… Public policy requires that pharmacists who prepare and dispense drugs and medicines for use in the human body must be held responsible for the failure to exercise the degree of care and vigilance commensurate with the harm which would be likely to result from relaxing it. (508 A.2d at 1251)

508 A.2d at 1252.

There is a separate issue in the Riff case concerning prescription refill authorization. It was a quantity of suppositories dispensed pursuant to a refill that caused harm to Riff, and the defendant physician stated emphatically that the refill had not been authorized. But this issue is largely irrelevant, and it is not discussed in the holding of the case. Riff could just as easily have been harmed by the initial authorized filling, and an adequate warning would have prevented harm even if the refill was unauthorized.

508 A.2d at 1253, 1254.

Dwight v. Rodrick and Jackson and Cross Chemists Banbury Ltd., Court of Appeal, Donaldson MR and Mary LJ. Dillon JJ dissenting. Nov. 3, 1983. Reported in Medico-Legal Journal 52: 64 (1984).

Medico-Legal Journal 52: 66. Also of interest is the fact that the apportionment of comparative negligence to the pharmacist was targe in both Riff (65 percent) and the Migril case (40 percent), since the pharmacist's responsibility was clearly stated in both cases to be secondary to the physician's primary responsibility.

The 150-page final report of the Nuffield Foundation Pharmacy Inquiry was issued in March 1986. The report states on page 16 that the Migril case “established that the pharmacist's legal responsibility extends beyond the accuracy with which a prescription is dispensed to the nature of the prescription itself.” See, Nuffield Inquiry Backs Expanded Role for Pharmacists in England, American Journal of Hospital Pharmacy 43: 1850 (1986).

476 N.E.2d 881 (Ind.App. 1985).

Id. at 887.

It is not inconsistent with standards of pharmacy practice for the legal community to require that pharmacists provide risk management information. The consequence of providing such information to a patient will be a decision by the patient to use a drug in a manner that maximizes its benefits and minimizes its risks. Risk management information does not result in a decision by the patient to forego drug therapy; thus it does not interfere with the physician-patient relationship. See, Brushwood & Simonsmeier, Drug Information for Patients: Duties of the Manufacturer, Pharmacist, Physician, and Hospital, Journal of Legal Medicine 7: 279 (1986).

Ramirez v. Richardson Merrell, Inc., 628 F.Supp. 85 (E.D.Pa. 1986); Eldridge v. Eli Lilly Co., 485 N.E.2d 551 (Ill.App. 1985); Jones v. Irwin, 602 F.Supp. 399 (S.D.Ill. 1985); Pysz v. Henry's Drug Store, 457 So.2d 561 (Fla.Dist.Ct.App. 1984).

Hand v. Krakowski, 453 N.Y.S.2d 121 (App.Div. 1982); Perkins v. Windsor Hospital Corp., 455 A.2d 810 (Vt. 1982); Kirk v. Michael Reese Hospital & Med. Center, 483 N.E.2d 906 (Ill.App. 1985) (case discussed hospital liability only, but recognized pharmacists as practitioners within the hospital).