Pharmaceutical liability in Florida: A primer

Those injured by medications may be able to hold the pharmacist responsible.

Patients can suffer serious injury when a pharmacist makes a mistake, and mistakes are not uncommon. According to a recent study by the Healthcare Providers Service Organization (HPSO), common claims made by patients against pharmacists include providing the wrong medication or the wrong dosage. These two claims make up over 75% of all claims against pharmacists and can lead to unintentional overdoses, fatal injuries and unexpected patient death.

In most cases, a victim or their loved ones will move forward with a pharmaceutical liability claim using the legal theory of negligence. If able to build a claim, the victim can use the civil court system, as opposed to the criminal system, to receive compensation. The compensation can help make the victim whole by offsetting, at least in part, the damage done by the negligent party.

The basic elements that a victim will need to establish to build a successful case against a pharmacist generally include duty, breach, causation and damage.

Element of negligent #1: Duty.

First, the injured party or their loved ones must show that the pharmacist owed a duty to care to the victim. The victim will likely establish this element if the pharmacist was serving as the victim's healthcare provider. When serving as a patient's pharmacist, the board that governs over the pharmacist's license as well as laws at both the state and federal level require the pharmacist provide the correct medication, in the right dose with the right instructions. A failure to do so, or to discuss possible side effects, are examples of potential violations of this duty.

Element of negligence #2: Breach.

Next, the patient must establish that the pharmacist failed to meet this duty. Violation of a federal or state statute can satisfy this element. Florida state law requires the pharmacist to discuss potential adverse reactions and counsel the patient on proper use of drug. A failure to meet either of these obligations could suffice to meet this element.

Element of negligence #3: Causation.

The patient or their loved ones will also need to show that the pharmacist's breach caused the injury. In many cases, this element requires the use of expert testimony.

Element of negligence #4: Damage.

Finally, the victim will need to show that there were injured. Medical records and further expert testimony can help establish this claim.

Victims are wise to be aware that the pharmacist will likely fight back. The pharmacist may argue that the patient misused the medication or that the injury was actually caused by something else unrelated to use of the medication. Being prepared for these arguments can help to better ensure a successful claim.