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Refusal to Fill

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The Court concluded that the duty to consult with a patient arises only when the pharmacist receives a prescription order—but is it that simple?

Should a pharmacist be held liable when a patient is harmed because the pharmacist does not assist the patient in obtaining a prescription? Does it make any difference if the pharmacist has never seen the patient before? These are the questions faced by the court in a recent case.

Refusal to FillFacts

On October 1, 1994, the patient entered a pharmacy that she had never been in before. She had a history of severe asthma and she believed she was suffering an attack when she went to the pharmacy. Her physician had prescribed an albuterol inhaler in the past. She was out of medication and did not have a prescription with her.

She asked the pharmacist to provide her with an inhaler or call her doctor or the hospital to verify that the medication had been prescribed. For reasons that are not explained, the pharmacist did not make the call and he refused to provide the requested medication. As a result, the patient was taken to a hospital by ambulance. She claims that she has suffered additional breathing problems from the delay in her treatment caused by the pharmacist’s refusal to assist her.

LawsuitLawsuit

The patient filed a malpractice lawsuit against both the pharmacist and the pharmacy. The defendants asked the trial court to dismiss the case on the grounds that the pharmacist had no duty to supply prescription-only medication without a prescription and that there is no duty for a pharmacist to call a physician for a prescription when there is no current prescription on file for the patient in the pharmacy. The trial court judge agreed and entered judgment for the defendants in February 1999. The patient appealed.

Decision

The Missouri Court of Appeals was faced with the question of whether a pharmacist has a legal duty to protect a patient by either dispensing the medication without a prescription or by calling the physician and obtaining a prescription. It began with defining “duty” as the obligation to conform to a standard of conduct to protect others from unreasonable and foreseeable risks. The fact that someone asks for help does not give rise to a legally recognized duty to act.

The Court noted the general rule in American jurisprudence that there is no legal duty to aid someone in distress unless a special relationship exists between the parties. Using these principles, the Court found that a pharmacist has no legal duty to protect the patient unless an established relationship previously existed. At best, it could only characterize this relationship as one between a pharmacist and a potential customer.

The Court also considered state and federal laws dealing with the rights and obligations of pharmacists. The state’s definition of the “practice of pharmacy” includes the “dispensing of drugs pursuant to prescription orders.” The Court interpreted the statute and found that it does “not describe or anticipate the practice of pharmacy to include calling a doctor or hospital to see if a potential customer who does not have a written prescription is entitled to prescription medication when he or she requests prescription medication due to immediate need.”

The Court went on to observe that a pharmacist is not a medical doctor, does not prescribe or make prescription orders, and dispenses drugs on the directions of those who are authorized to prescribe. It also noted that the state had amended its Board of Pharmacy regulations to comply with the federal OBRA-90 statute mandating standards regarding pharmacists’ consultations with patients. In part, this regulation states: “Upon receipt of a prescription drug order and following a review of the available patient information, a pharmacist or his/her designee shall personally offer to discuss matters which will enhance or optimize drug therapy with each patient or caregiver of each patient.” The Court concluded that the duty to consult with a patient arises only when the pharmacist receives a prescription order.

Considering common law tort principles and the applicable statutes, the Court affirmed dismissal of the case. It concluded that the pharmacist had no legal duty to the patient because she had never had a prescription filled at that pharmacy and did not present the pharmacist with a prescription.

Analysis

This is a strikingly unusual case because it is rare that anyone sues a pharmacist for not filling a prescription. From an economic standpoint, the reason should be obvious. Pharmacists do not get paid when they refuse to fill prescriptions. Stranger yet, the patient here did not even have a prescription to present to the pharmacist. Odd as it may seem, the patient appears to be arguing that the pharmacist should have supplied a prescription-only drug without a prescription just because she asked for it. It should come as no surprise that the Court ruled as it did. At least, not under these facts.

But maybe it is not that simple. Why didn’t the pharmacist call the physician? No explanation is provided. Pharmacists call doctors for new prescriptions for new patients all the time. So this request cannot be considered that unusual. And remember, there is the economic incentive to make the call. Maybe he was busy. Maybe the pharmacy did not take her insurance and she had no money to pay for the inhaler. Maybe he had some other good excuse. Perhaps he did not. Maybe he just did not like the way the patient looked or acted. Either way, it does not matter. According to the Court in this case, the reason or motivation for refusing to call the doctor is not relevant. If there is no prior existing relationship, no duty exists to help another.

Does a pharmacist have a legal duty to protect a patient by dispensing medication without a prescription?

Perhaps this explanation serves general situations well. Under American law, a simple request for assistance does not create a legal duty on the part of someone else to render help. While there may be a moral or humane obligation to help, absent a “special relationship,” the law does not impose a duty to help others in distress. It may seem odd but, according to what is sometimes called the “rescuer doctrine,” there is no duty on the part of an observer to rescue a drowning child when the observer could do so even without any danger or risk of harm to the observer.

The law even provides an incentive not to provide aid when one does not have to. If one who has no duty to assist in the first place voluntarily assumes the duty and offers assistance, that person must render the aid completely and in a non-negligent manner. Failure to due so could result in liability by the rescuer. Using the drowning child analogy, assume an observer on the shore could easily wade out into the water, pick up the child and carry it safely back to shore. Although there may be no initial duty to rescue the child, the observer who starts the rescue must complete it in a non-negligent way.

Assume the observer sees the child drowning, starts out to save it but halfway there changes his or her mind and returns to shore. Assume further that the child does drown. It is possible that the would-be rescuer could be sued and held liable for wrongful death if there were evidence that someone else would have saved the child but did not try because he or she saw the other rescuer start out to aid the child.

While that doctrine may be well and good for ordinary situations, it does not serve the public or professionals very well. In this case, labeling the patient as nothing more than a “potential customer” left her with no recourse but to take an ambulance to the hospital emergency room for treatment of a full-blown asthma attack. Arguably, had the pharmacist obtained a prescription and filled it, this extra time and expense could have been avoided.

Imagine what the outcome might have been had the Court viewed the patient as a patient and not just a “potential customer.” The Court might just as well have concluded that a special relationship exists when a professional holds him or herself out to be a helping professional. Putting a sign out in view to the public that says “pharmacy” and putting on a smock or name badge on that says “pharmacist” is a form of advertising or, at least, informing others that we have healthcare knowledge and ability and are there to help.

There is an implication that pharmacists are obligated to help when we can. But, for now, that obligation remains an ethical, not legal one. However, the day may not be far off when the courts turn our ethical principles into legal mandates.

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