Thursday, October 29, 2009

Should pharmacies be liable for stupid patients?

Yesterday’s Wall Street Journal had a scary cover story titled Case Spurs Pharmacies' Fears of Lawsuits Over Drug Abuse. (Click here for a free summary if you can't access the article.)

The article describes a lawsuit against a group of pharmacies for dispensing prescription painkillers to a woman who killed someone while driving high on hydrocodone.

Just my $0.02, but I think it’s ludicrous to pin the blame on a pharmacy for the deranged behavior of one consumer. The pharmacy chains are being dragged into this case because they have deep pockets, not because they should be responsible for the tragedies described in this article.


The personal tragedies described in this story are a heartbreaking reminder that prescription drug abuse is a serious problem.

Briefly, a woman who abused prescription painkillers went for a drive and swerved off the road, killing one man and seriously injuring another. Alas, the driver was unhurt. There were prescription bottles and 167 loose pills of hydrocodone, Soma and other drugs in her car. A blood test detected hydrocodone after the accident. The driver pleaded guilty to two counts of reckless driving and served nine months in jail. Yes, only nine months.

Here’s where things get complicated.

According to the article, Nevada’s Prescription Controlled Substance Abuse Prevention Task Force sent a letter to 14 pharmacies in the Las Vegas area one year prior to the accident warning that the woman could be abusing drugs after she purchased 4,500 painkillers in one year.

The victims’ families duly filed a lawsuit against seven pharmacy-chain owners—including Wal-Mart, Walgreen, CVS Caremark and Rite Aid—and one independent drugstore.


According to the WSJ reporter, “The case, Sanchez vs. Wal-Mart Stores et al, asks whether drugstores must use information at their disposal to protect the public from potentially dangerous customers.”

Let me put it another way: Can the seller be held liable if the buyer does something incredibly stupid after leaving the store? Why not sue the car dealer that sold her the car? Or the gas station where she filled up before the accident? If this case goes against pharmacies, there could be a never-ending stream of brand-new “liabilities” and "responsibilities" for pharmacies.

Plus, I don’t see how any single pharmacy or pharmacist would have been able to deny filling her prescription since the woman was using multiple pharmacies to get her pills. Dispensing controlled substances doesn't fall into the category of a “commoditized activity” per my article about Wal-Mart last month.

More questions: Where was law enforcement? Why didn't they intervene once the form letter from the Nevada Board was mailed? The protagonist in this drama served only nine months! Didn't she know that she was abusing the prescriptions meds, or has she been absolved of all responsbility?

Am I’m missing something in this story? I’m curious to know what my pharmacist readers think about this case.


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  1. Okay, I've read your opinion -- and I sharply disagree.

    The article seems to be silent on the issue of counseling. State rules mandate that the pharmacist counsel the patient. It's a huge dereliction of duty for all of the pharmacists that filled her Rxs to not observe that she was misusing these drugs -- particularly since it appears that many of not most of them were filled at a single store. Moreover, it appears that they were wrned by the State of an abuse problem.

    Remember that pharmacies keep patient profiles. Again, I blame the store and the pharmacists for not catching this obvious misuse.

    Do we know if she had Rx insurance? If she did, where's the PBM in this process? They should have at least noticed the problem and alerted the health plan.

    If these were cash Rxs, I'd like to know if the store got a higher markup. If they did, it's a smoking gun: One could conclude that the store knew the patient was abusing the drugs and chose to fill the Rxs, and make more money.

    The pharmacist has a professional obligation that's much more compelling than the duty of a bartender.

    All in all, it's clear that if one pharmacy filled most of these Rxs, the pharmacy and its pharmacists should hang their heads in shame

  2. George RPh.October 29, 2009

    I am stunned, absolutely floored, by the stupidity of the above comment. "if the store got a higher mark up it is a smoking gun". Seriously? Where do you live buddy? How about looking at things based in reality. Were any of the pharmacies filling her prescriptions early. THAT could be a problem. Not how much they charged. While she was filling these prescriptions, did one chain know when she went to another chain to fill the same RX? I don't think so. Let's say she was going to Walmart ONCE a month for her RX. Walmart has a patient profile, that shows that this woman comes in ONCE a month. How can they know how frequently she goes to other pharmacies for the same medication? They can't. One pharmacy does not have access to another pharmacies records. So as far as your statement of 'the pharmacists not catching the obvious abuse', once again I ask you, how can the pharmacists of one store know what is going on at other stores.

    You sound like some ambulance chasing attorney who does not take a step back to look at all the facts, and just points fingers!

    And according to the State, was she doing anything illegal? The State obviously knew she was doctor shopping, that's why they sent out a letter to pharmacies. Since they knew she was doctor shopping, she was either hooked on these meds, or selling them illegally. Did the State do anything? If she was selling them, did the State arrest her? If she was using them, did they try to get her into any drug rehab program?

    Maybe we should just arrrest the whole State.

  3. Plenty of blame can be passed around to those who interacted with this woman. No party is lilly white.

    However, the weakest link in the chain of events is the Nevada Taskforce that created a database and program without providing laws that provide pharmacists direction, and protection, when cases like this arise. The comment that "It is not the Task Force's intent to determine how you dispense prescriptions. Well-informed pharmacists can and will use their professional expertise to assist patients who may be abusing controlled substances" is a abdication of responsibility and another shining example of tactics applied without strategic thinking around outcomes.

  4. Better stay very anonymous on this one....

    Though Anonymous #1 above seems to be some sort of extremist with his far right views, George on the other hand does not have 100% of his facts straight as well. And George seems like a great druggist!

    I hate to say it, but most States (not sure if NV is one of them) have some sort of PDMP, Prescription Drug Monitoring Program. This would throw the blame on Uncle Sam for gathering the data, but sitting on it and only reviewing it ad nauseaum, while drinking their coffee. When a party is educated on a wrong doing, it is their least help correct that problem.

    Lastly, and this is a tough pill to swallow for both the pharmacy profession and managed care industry (PBM), if the patient indeed had some sort of insurance via a PBM, then most likely the data was shared via a "return message" to the pharmacy. Something like "overutilization of narcotics" or "7th controlled drug in 60 days".

    PBM's and pharmacies should have been more involved in educating the consumer on the perils of drug abuse.....even though I know from 25 years experience that this would have made zero difference!

    And Adam, my oh my. It seems to me you're actually supporting the pharmacy side today. Does this have anything to do with the higher % of independent druggists in the city of brotherly love?

  5. Re: "supporting the pharmacy side today"

    Despite what you seem to believe, I don't take sides. I call it as I see it.

    Or maybe I'm just in a good mood because the Phillies won last night.


  6. I know...just giving you a hard time.

  7. How about pointing the finger at the guilty party- the lady who committed the many felonies that resulted in the death.

    Ultimately, it was her negligence that caused this distruction, not the mfg, dist, retailer, gov't or any other agency.

    Doug P.

  8. well, after reading 3 paragraphs, i offer the following: this is like saying sue all the liquor stores for all the drunk driving deaths.

  9. ok, let's focus here: e-health records and e-prescribing would eliminate people like her getting the wrong meds at the wrong time. Forget the blame folks and look to the future solutions! Hugh Paton

  10. I dropped a heavy book (which I bought from Amazon) and broke my toe nail.

    Time to sue Amazon!!!

  11. We can solve all the BS with ELECTRONIC RECORD..!

  12. If the pharmacist had access to the entire patient's records (at all pharmacies), which the article seemed to indicate, then the pharmacist is liable.

    A study called the "Millis Report" came out in the 1970's which said that pharmacists were similar to the bookseller in duties and responsibilities (Pharmacy was NOT a profession). After that, organized pharmacy developed the concepts of "Pharmaceutical Care" and "Clinical Pharmacy" which gave us professional duties and responsibilities. With these duties and responsibilities, can lawsuits.

    If we have access to the patient data, we need to act responsibly or be sued.

  13. Adam;

    I was just curious after reading the story about the lady who was abusing painkillers killing a couple of pedestrians if in fact pharmacies have access to every patients records even if they do not use that pharmacy or exactly how that works. Or how would a pharmacy tell if the women was abusing the pain killers? I live in Arizona and was wondering if there were such programs that track what prescriptions patients use and how often. Please advise



  14. Hi Mike,

    The DEA website is a good central source of information about prescription drug monitoring programs. According to the site:

    "As of November 2008, 38 states had enacted legislation that required prescription drug monitoring programs: 32 of those programs are currently operating and 6 are in the start-up phase."

    See the DEA's Prescription Drug Monitoring Programs website.