Judge Holds Actual Malice Is Necessary for Punitive Damages Against Pharmacy

A court was asked to decide whether punitive damages (in addition to compensatory damages) can be assessed against a pharmacy based on the negligent errors of its pharmacists.

A male patient was prescribed amiodarone by his cardiologist to treat his chronic ischemic heart disease and atrial fibrillation. The physician’s instructions for use of the medication were as follows: two 200-mg tablets twice daily for 1 week, followed by one 200-mg tablet thrice daily for 2 weeks, followed by one 200-mg tablet twice daily for 2 weeks, and finally one 200-mg tablet per day thereafter.

The pharmacist who originally filled the prescription made an error and omitted the last part of the instructions about going down to 1 pill per day. The quantity prescribed was 200 pills, which would have covered the original 5-week period and left an additional 102 pills at 1 tablet per day. When the prescription was originally filled, the pharmacy did not have enough pills on hand and only dispensed 60 tablets to the patient.

When the patient ran out and returned to the pharmacy, a second pharmacist missed the same error in the instructions. In addition, the first pharmacist had noted 514 pills were prescribed, not the 200 pills that had actually been ordered, so the patient was mistakenly given 454 tablets. The patient, meanwhile, was following the incomplete directions on the prescription vial and taking double the dose that he should have been taking. At a third pharmacy visit, a third pharmacist failed to catch the error and attached the wrong directions to the medication.

The patient’s health began to fail, and he suffered greatly before his death from amiodarone-induced hepatotoxicity. His family sued the pharmacy, seeking both compensatory damages (to pay for expenses and loss) and punitive damages (designed to punish the pharmacy for not averting this tragic outcome). The pharmacy asked the trial court to dismiss the portion of the cases seeking punitive damages.

In making their decision, the trial court pointed to the state’s law, which holds malice is an essential element of a claim for punitive damages. The trial court determined the plaintiffs had not proven the pharmacy chain or pharmacists had the requisite malice, which was defined as “a positive state of mind, evidenced by the positive desire and intention to injure another, actuated by hatred or ill will toward that person.” The plaintiff argued the gross negligence of the pharmacists rose to the level of presumed malice and was the equivalent of wanton or willful misconduct, but the court disagreed.

Although the pharmacists were negligent in their duties, they were not found to have malice and that portion of the case was dismissed.

Reference:
Estate of Stengle v The Walgreen Company, 3:20-CV-03001-RAL F Supp (CD SD 2021).