Unfortunately, medical malpractice can result in devastating outcomes for individuals and their loved ones. It is not just doctors, dentists, nurses and hospital staff that can be held responsible for harm caused. Pharmacists are also considered medical practitioners, and as such, owe a duty of care to their patients.

This article looks at the principles of negligence as they apply to pharmacists. We also review a recent decision of the Superior Court of Justice of Ontario, in which a man involved in a motor vehicle accident that caused significant injury sued his pharmacist, alleging that she failed to warn him as to the use of certain prescribed medications. 

Pharmacists can be held liable for negligence?

Pharmacists, as professionals that dispense medication and are remunerated for providing such services, owe a duty of care to their patients. The standard of care for a pharmacist has been described as comparable to that of a physician, as both are considered medical practitioners.

In order to succeed in a negligence claim, the plaintiff needs to prove that the pharmacist fell below the standard of care and that this breach of the standard caused the resulting injury. 

Pharmacists must meet standard of care when dispensing medication

Normally, expert evidence is required to determine the particular standard of care when the subject matter is beyond the knowledge and experience of the court. As such, the parties will call other pharmacists to provide evidence as to what a pharmacist would be expected to do in the particular circumstances of the plaintiff’s situation. 

There is a Model Standard of Practice for Canadian Pharmacists established by the National Association of Pharmacy Regulatory Authorities, which could be used as the basis for identifying the relevant standard of care. 

The evidence in a particular case might establish the following: 

  • The pharmacist is to provide verbal counselling for “new” medications. On subsequent “renewals”, the pharmacist is to make an inquiry regarding the use of the medication. The purpose of counselling is to provide information to the patient, and the subsequent inquiry is to ascertain if there are any problems.
  • Information provided in verbal counselling is the purpose of the medication, risks and side effects. This might include reviewing the physician’s directions as to use, advising on the possible side effects, and providing particular cautions regarding risks when required including operating a motor vehicle, consuming alcohol and using other medications.
  •  The pharmacist is to document whether counselling was provided to the patient, or offered and declined, by initialling the hard copy of the prescription. 

Man injured in car accident alleged pharmacist failed to advise of dangers of driving while on medication

In D’Aoust v. Youssef, the plaintiff was injured in a motor vehicle accident in April 2010 after his vehicle crossed the centre line of a road and collided with a transport truck. The plaintiff had previously been seriously injured in an accident in 2006 and had become addicted to the oxycontin and oxycodone prescribed to treat his pain.

In March 2010, he suffered a mental health crisis and was admitted to the hospital. On release, he was provided with a new prescription for oxazepam, a non-addictive drug to address anxiety and withdrawal from his prior medications. Oxazepam is reported to cause a hypnotic effect and can impair motor or cognitive functioning. It is recommended that people taking this medication be warned to use care in operating a vehicle or machinery and to abstain from drinking alcohol. There was conflicting evidence as to what medications the plaintiff was using on the day of the accident in April 2010.

The plaintiff sued the pharmacist and pharmacy that dispensed the oxazepam on the grounds that the pharmacist failed to warn him about the dangers of driving when using the drug.

Plaintiff alleged pharmacist provided no counselling, warning labels for drug

The plaintiff alleged that the pharmacist did not provide any counselling with respect to the use of oxazepam. He also stated that no warning label was attached to warn him to use care when operating a vehicle. As evidence that the pharmacy’s vials had no warning labels, he provided testimony from a forensic engineer who examined oxazepam vials that did not have warning labels and showed no residual adhesive on the vials or evidence of tampering.

While she did not have a specific recollection of the events at issue, the pharmacist’s evidence was that her usual practice was to provide counselling, warning labels, and an information sheet to patients. She used a software program that reported new medications and reminded her of the need for counselling. Further, she endorsed the hard copy of the plaintiff’s prescription, indicating that she had provided counselling on the use of the drug.

Pharmacist likely followed usual dispensation practices, meeting standard of care: Ontario Superior Court

The Ontario Superior Court reviewed expert evidence about the standard of care that applies to a community-based pharmacist. It found that warning labels and information sheets are not required to be provided to meet the standard of care. The Court was satisfied that so long as the pharmacist followed her usual dispensation practices, she complied with her professional obligations. The issue, then, was whether the pharmacist had actually done so and provided counselling to the plaintiff.

The Court decided that on a balance of probabilities, the pharmacist had followed her usual dispensation practices. She understood the medication and its side effects and was aware of the patient’s medication history. She had had a conversation with the plaintiff’s mother (who was the plaintiff’s authorized agent) about him being on the new medication, and the mother advised the pharmacist of his recent hospitalization. The Court found that it was logical to assume that the conversation between the pharmacist and the plaintiff’s mother would have covered the side effects of oxazepam and a caution about driving while on the drug. As a result, the plaintiff’s case was dismissed.

Contact Tierney Stauffer LLP for Advice on Medical Malpractice and Professional Negligence Claims 

At Tierney Stauffer LLP, we know how overwhelmed you may feel about the prospect of launching a medical malpractice or other professional negligence lawsuits. Those seeking compensation for their losses need a skilled personal injury lawyer who can provide clarity to the process and find the best path forward. If you have suffered financial or physical injury or damages as a result of a professional’s carelessness or breach of trust, please reach out to us by telephone at 1-888-799-8057 or reach out online to set up a consultation.

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