Bad Medicine: On Painkillers, Pharmacies and the Law

[WSJ_law_blog]

Should pharmacies be held liable for the actions of patients who abuse drugs?

It’s a provocative question currently pending before the Nevada Supreme Court. The case is part of a broader movement under way to place more responsibility for patients’ prescription-drug use on pharmacies. Click here for Amy Merrick’s page-one story in the WSJ.

The facts of the Nevada case are undeniably tragic. On the afternoon of June 4, 2004, a woman named Patricia Copening climbed into a gray Dodge Durango, veered onto a Nevada highway and plowed into a delivery-van driver who had pulled over to repair a flat tire on the highway’s shoulder, killing him at the scene. She also hit another man, causing a head injury, a broken right leg and other wounds. Copening wasn’t injured.

A lawsuit filed by the victims and their families against Wal-Mart, who dispensed a painkiller prescription to Copening, asks whether drugstores must use information at their disposal to protect the public from potentially dangerous customers. In this case, state officials had sent letters to 14 pharmacies in the Las Vegas area warning that Copening could be abusing drugs.

As a result, consumers, government officials and pharmacies themselves are increasingly asking what a pharmacy is legally and ethically obligated to do with this newly available information.

On the one hand, federal regulators have acknowledged that pharmacists should be held legally accountable in egregious situations. In guidelines to pharmacists, the federal Drug Enforcement Administration says: “The pharmacist who deliberately looks the other way when there is reason to believe that the purported prescription had not been issued for a legitimate medical purpose, may be prosecuted. . . . ”

However, drugstores worry Sanchez could open them to broader and more ambiguous responsibility with significant consequences to the industry.

Some predict higher insurance costs and more expensive prescriptions, to absorb the costs of additional lawsuits. In filings, Wal-Mart argued that pharmacies might decide not to stock certain regulated painkillers. Walgreen suggested that the judgment of pharmacists could be pitted against that of doctors, as pharmacists struggle to decide whether to refuse a prescription.

Across the country, recent court decisions have expanded pharmacists’ responsibility. In 1994, the Indiana Supreme Court ruled that a pharmacy had a duty to stop dispensing painkillers to a patient who was refilling a prescription faster than normally would be appropriate.

In the Nevada case, Clark County district court Judge Douglas W. Herndon dismissed the pharmacies from the suit, noting that the Nevada law creating the task force doesn’t specify what action, if any, is required by the pharmacies.

The families appealed to the state Supreme Court, which heard oral arguments in March.

Lawyers for the pharmacies argue that, while drugstores may choose not to sell drugs to a customer, they had no legal obligation to turn away Copening or to protect the general public from her actions.

In a statement, Walgreen said: “While we’re sympathetic to those injured in Ms. Copening’s car accident, we agree with the district judge’s decision that our pharmacists fulfilled their legal duties.” Similarly, Wal-Mart said, “This is a deep personal tragedy for the families involved.” Because the court hasn’t issued its decision, “we don’t believe it’s appropriate to say more at this time,” the company said.

It is not the responsibility of a pharmacy to police users' illegal behavior! IMO