Does a pharmacist have a duty to warn her customers of the side effects of prescribed medications in Indiana? In
, Case No. 32A04-1008-CT-525, the Indiana Court of Appeals said that they do.
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The facts of this case will be helpful in understanding the nature of the Court's decision, so I will discuss them in detail.
In this case, a woman was prescribed a laxative to prepare her for a colonoscopy. She filled the prescription at her regular CVS pharmacy, which had her complete record of her prescription history. At the time, the woman was also taking an ACE inhibitor that had been associated with a risk of kidney damage when used along with the prescribed laxative. The pharmacist who filled the prescription received two separate warnings from CVS’s computers while filling the two prescriptions: one alerting her to the risk of kidney damage as a result of someone Christine's age using OsmoPrep, the other alerting her to the risk of kidney damage as a result of the amount of OsmoPrep Christine had been prescribed and would use in a short period of time. The pharmacist did not convey either of these warnings to the woman.
The night before the colonoscopy, the woman took the laxative per the instructions. By the next day, the woman did not feel that the laxative had completely prepared her for the procedure. She called her doctor to notify him and determine what course of action to take. The colonoscopy was rescheduled for the following day and the woman was informed that another prescription for laxative would be called in to CVS; the woman found this surprising, as she expected to be told to just keep drinking water.
After concluding her phone call with her doctor, the woman returned to CVS to obtain her second round of the laxative. While the same pharmacist filled the prescription, a second computer-generated notification alerted her that the prescribed dose of the laxative would exceed the amount ordinarily considered safe in such a short period of time, increasing the risk to the woman of renal failure. The pharmacist again dismissed the notice and filled the prescription without notifying the woman of the warning's content. During this visit, the woman told a pharmacy technician that she had been experiencing tingling running from her fingers to her elbows, and inquired whether these sensations might be a side-effect of the laxative. The technician consulted with the pharmacist, who said that the laxative did not cause the tingling sensation.
After taking the laxative a second night, the woman woke up with her whole body "buzzing," feeling "like if you push an electric lawnmower … and … you let go and your hands are vibrating," and drove herself to the hospital. She was diagnosed with kidney failure due to phosphate nephropathy.
The plaintiffs sued, among others, CVS and the pharmacist, who moved for summary judgment, arguing that they had no duty as a matter of law to warn the woman of the dangers posed by the laxative or to decline to fill the prescription. The trial court granted that motion.
On appeal, the Court noted that
I.C. § 25-26-13-16(a) requires that pharmacists exercise their professional judgment in the best interests of the patient's health while engaging in the practice of pharmacy. This, combined with customers' reliance on their pharmacists, create a duty of care between the pharmacist and the customer.
While the provisions of the Indiana Code and Board of Pharmacy regulations do not give rise to a statutory duty of care, the Indiana Supreme Court has held that specific circumstances may give rise to a pharmacist's duty to warn or withhold and that the Legislature's policy concerns, as expressed in the statutes governing pharmacies and pharmacists, are central to determining when such a duty arises.
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[W]here the pharmacist knew that McLaughlin's refill of his prescriptions was unreasonably rapid and this should have alerted the pharmacist to the substance abuse issues likely associated with this behavior, here, Branchfield had information that gave rise to a duty to exercise professional judgment under the statute. In light of this evidence, we hold that CVS and Branchfield had a duty of care to Christine either to warn Christine of the side effects of OsmoPrep or to withhold the medication in accordance with Indiana Code section 25-26-13-16 and Pharmacy Board rule 1-33-2.
