Second District Appellate Court of Florida Reinstates Estate’s Claim Against Pharmacist

In all personal injury actions, the at-fault party or parties must owe a duty to the injured party or parties in order to be found liable for the damages incurred by the victim or victims. A duty exists when the law requires a certain person or entity to exercise a specified amount or type of care in a certain profession or situation. If no duty exists, a claim against a defendant can be dismissed by a trial court judge toward the beginning of the proceedings.

In Sorenson v. Prof. Compounding Pharmacists of Western Pennsylvania (Case No. 2D15-441), the executor of an estate sought review of the dismissal of the estate’s claim when the pharmacist failed to use proper care in filling a prescription. The deceased man had previously suffered lower back pain caused by a car accident, and he managed his pain through a pump delivering hydromorphone into his spinal canal. The man, originally from another state, visited a Florida Pain Management Center, where he received a prescription for hydromorphone that increased the concentration from 10mg/mL to 30 mg/mL.

The prescription was sent to the defendant pharmacist, who compounded the medication and sent it to the Pain Management Center. The center administered the medication through his pain pump, and he died later that same day. The executor filed suit against the Pain Management Center, several health care providers used by the center, and the pharmacy that compounded the medication. In its claim against the pharmacist, the estate alleged the pharmacy negligently prepared and dispensed the prescription for hydromorphone, alleging the dosage amount was unreasonable on its face. The trial court dismissed this claim with prejudice, finding that the pharmacist did not owe a duty to the deceased man.

The appellate court looked to case law developed in Florida regarding pharmacies involved in wrongful death negligence. A 1965 Florida Supreme Court case, McLeod v. W.S. Merrill Co., established the duty a pharmacist owes to its customers. In McLeod, the court concluded that any druggist who sells a prescription warrants 1) that he will make the drug prescribed, 2) that proper care was used in filling this prescription, 3) that proper methods were used in creating the prescription, and 4) that the prescription was not tainted by foreign substances. The appellate court pointed to sister appellate court decisions that have reaffirmed this standard throughout the years. The Second District also noted that the duty to use the proper and due care extends to simply filling the prescription as written. A breach of duty can occur if the prescription is unreasonable on its face. This can include prescriptions several months old without limits or refills presented repeatedly that would either be too soon or counter productive when taken with one another.

The appellate court in this case concluded that, based on the allegations, the pharmacist could or should have known that the prescription was unreasonable. The court ruled that the trial court erred in dismissing the count with prejudice, reversed its ruling, and allowed the claim to move forward in the estate’s case.

The Florida wrongful death attorneys at Donaldson & Weston have the personal injury experience to pursue all claims applicable in your case. All parties that have contributed to the injury and death of a loved one should be held accountable, and our attorneys will tirelessly pursue holding the at-fault party or parties liable. For a consultation, call today at 772-266-5555 and 561-299-3999.

More Blog Posts:

Florida Appellate Court Reinstates Injured Automobile Passenger Award of Over $93,000, South Florida Injury Lawyer Blog, February 17, 2016

Florida’s First District Court of Appeal Allows Child’s Wrongful Death Suit to Continue, South Florida Injury Lawyer Blog, January 18, 2016