noted that a pharmacist is not strictly liable under a products liability theory because he is not a retailer. Following the lead of these courts, I conclude that defendant Queen Pharmacy is entitled to judgment as a matter of law as to plaintiffs' strict liability claim.
Plaintiffs' second claim against defendant is grounded in negligence. Plaintiffs have not alleged that defendant was negligent in the filling of the prescription, i.e. that the pharmacist substituted another compound or a generic drug for that prescribed or that the pharmacist failed to include a warning that the physician had directed should be used. Rather, plaintiffs allege that defendant had a duty to warn plaintiff Rosa Ramirez of the potential hazards associated with the ingestion of Bendectin and that, in failing to give such warnings, was negligent. In support of their contention that pharmacists have a duty to warn patients of the potential hazards associated with the drugs, plaintiffs rely on the affidavit of Stanley Charles Glauser, Chief of the Division of Clinical Pharmacology at the graduate Hospital and excerpts from the Standards of Practice for the Profession of Pharmacy, American Pharmacy, volume 19, no. 3 (March, 1979). Both Dr. Glauser and the Standards of Practice suggest that a pharmacist has an obligation to fully advise and inform his clients of the potential adverse effects.
To impose a duty to warn on the pharmacist, however, would be to place the pharmacist between the physician who, having prescribed the drug presumably knows the patient's present condition as well as his or her complete medical history, and the patient. Such interference in the patient-physician relationship can only do more harm than good. As the court in Batiste v. American Home Products Corp., 32 N.C. App. 1, 231 S.E.2d 269, 274 (1977) emphasized, when holding that a pharmacy could not be held liable in negligence for its failure to warn the plaintiff of the potential side effects associated with an oral contraceptive drug, defendant is not a physician and is not qualified or licensed to advise plaintiff with respect to the best medication for her use. See also Ingram v. Hook's Drugs, Inc., Ind. App., 476 N.E.2d 881 (1985).
Plaintiffs contend that because over-the-counter products containing antihistamines similar to those used in Bendectin are required by federal regulation to carry a warning regarding use of the product during pregnancy, defendant pharmacy was under an obligation to provide such a warning to plaintiff at the time it filled the prescription. As previously noted, however, the duty of the manufacturer in the case of prescription drugs runs to the physician and not the patient under Pennsylvania law. To impose a greater duty on the pharmacist would be anomalous and would create an unduly high burden on the pharmacists. The point that must be emphasized is that the drug sold by defendant Queen Pharmacy was a prescription drug. The weighing of benefits of medication against potential dangers that are associated with it, which is the basis of the prescription drug system, requires an individualized medical judgment which only the physician can provide.
Adopting the standard set forth in McLeod v. W.S. Merrell Co., Div. of Richardson-Merrell, 174 So.2d 736, 739 (Fla. 1965), I conclude that a druggist has the duty to compound the drug prescribed, to use due and proper care in filling the prescription, to use proper methods in the compounding process, and to ensure that the drug is not adulterated with a foreign substance. Plaintiffs have not alleged a breach of any of these duties, and defendant QUEEN PHARMACY is therefore entitled to judgment as a matter of law as to the negligence claim.
© 1992-2004 VersusLaw Inc.