NJ Court Declines to Let Pharmacies Off the Hook for Patient Overdose

A New Jersey appeals court recently revived a case against 4 pharmacies that a lower court dismissed. The case raises some important issues regarding pharmacists’ responsibility when dispensing opioids and raises a new approach to pharmacy liability with regards to controlled substances.

Just the Facts

In November 2017, Ms D, aged 32, died due to acute intoxication from oxycodone and alprazolam. The wasting disease, cachexia, also contributed to her death. The medications that Ms D overdosed on were prescribed by Dr G, who had been prescribing medication to the patient since 2010. Police found hundreds of bottles of prescription medications prescribed by Dr G at the scene of Ms D’s death, as well as 200 fentanyl patches, also prescribed by the physician.

Two years after her death, Ms D’s father (the plaintiff) filed a lawsuit naming Dr G as a defendant, as well as the 4 pharmacies that filled the prescriptions, including Walgreens, CVS, and 2 smaller retail pharmacies. Regarding the pharmacies, the plaintiff alleged that the pharmacies knew or should have known that the medications were negligently, carelessly, and recklessly prescribed, given the amount and frequency. The pharmacies moved to have the case dismissed against them based on the learned intermediary doctrine, which holds that it is the physician’s responsibility, not the pharmacist’s, to warn a patient about the dangers of medication. The trial court agreed and dismissed the case against the four pharmacies. The plaintiff appealed.

The Appeal

The learned intermediary doctrine, codified into state law in New Jersey, “recognizes that a prescribing doctor has the primary responsibility of advising the patient of the risks and benefits of taking a particular medication.” On appeal, the plaintiff did not dispute that the doctrine applies to pharmacies that accurately fill prescriptions written by doctors in reasonable amounts and frequencies. Instead, he contended that the doctrine didn’t apply here because the pharmacies engaged in “professional malpractice by not noticing that the amount and frequency” of the doctor’s prescriptions for controlled substances was outside reasonable practices. The plaintiff alleged that the pharmacists should have refused to fill the prescriptions.

The appeals court agreed with the plaintiff and held that his professional malpractice claims against the pharmacies were distinct from failure to warn claims that would have legitimately been dismissed under the learned intermediary doctrine. The appeals court reversed the lower court’s decision and remanded the case to the trial court for further proceedings to determine whether the pharmacy defendants deviated from the standard of care owed to Ms D.

The Takeaway

The plaintiff in this case is alleging not that the pharmacies caused his daughter to become addicted, but rather that they should have recognized that the prescriptions were improper (too much, too frequent) and refused to fill them. It should go without saying that prescriptions for opioids or other addictive, potentially dangerous medications should be treated with care and that prescriptions that are out of the ordinary in terms of frequency or dose need to be questioned. Whether the pharmacies will ultimately be held liable in this case remains to be seen, but they could not easily get out of it by blaming the physician.

Reference

George Shamy v Eddie Gamoa, MD. A-331-20. (NJ Super Ct 2023)