MICHAEL DEE, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF NICOLE DEE, DECEASED, APPELLANT,
v.
WAL-MART STORES, INC., AND ROBERTO MORALES, M.D., APPELLEES
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The court held that the amended complaint sufficiently stated a cause of action for negligence against the pharmacy.
[1] A pharmacy has a duty to use due and proper care in filling a prescription.
[2] A pharmacy may breach its duty of care by filling a prescription that is unreasonable on its face, even if lawful as written.
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Join FLexlaw to unlock all legal intelligenceA patient received a prescription for a fentanyl patch, and over four months later, filled it at the defendant pharmacy. The patient died from fentany…
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BARFIELD, J.
Michael Dee, as Personal Representative of the Estate of Nicole Dee, deceased, appeals the dismissal of a negligence claim against Wal-Mart Stores, Inc., for failure of the amended complaint to state a cause of action. The complaint alleged negligence on the part of the pharmacy at Wal-Mart in filling a prescription for Nicole Dee. We reverse.
It is alleged that Nicole Dee received a prescription for a 50 mierogram Duragesic patch from her physician following a Cesarean section. There was no time limit on the face of the prescription. More than four months later Mrs. Dee had the prescription filled at Wal-Mart’s pharmacy and used it to treat pain from a fractured ankle. A Duragesic patch contains the opioid analgesic “fentanyl.” Mrs. Dee died in her sleep as a result of a toxic overexposure to fentanyl.
A pharmacy must use due and proper care in filling a prescription. McLeod v. W.S. Merrell Co. Div. Of Richardson-Merrill, Inc., 174 So. 2d 736 (Fla.1965). When a pharmacy fills a prescription which is unreasonable on its face, even though it is lawful as written, it may breach this duty of care. It is alleged that the prescription for this Duragesic patch, without a time limit for filling or using the prescription, renders the prescription unreasonable on its face. It is alleged that this Duragesic patch, if used by one not on a fentanyl regimen, will likely cause hypo-ventilation resulting in death. It is alleged that a pharmacist viewing this prescription which is more than four months old would reasonably conclude that the patient is opioid-naive. The pharmacist should warn of this danger and/or inquire of the physician whether the prescription should be filled for this patient. It is alleged that the pharmacist did neither. These allegations of the amended complaint state a cause of action in negligence.
We agree with the trial court that the pleadings do not sufficiently allege a voluntary undertaking.
The decision of the trial court is reversed and the case remanded for further proceedings consistent with this opinion.
ALLEN and DAVIS, JJ., concur.
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Citator
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The Est. OF Norma J. Johnson v. Badger Acquisition OF Tampa LLC, 983 So. 2d 1175 (Fla. 2d DCA 2008)…istrict Court opined that “Florida appellate courts have recently begun to affirm negligence actions against pharmacists,” id. at 278, and held it was error to dismiss the negligence claims. It concluded that McLeod and Dee v. Wal-Mart Stores, Inc., 878 So. 2d 426 (Fla. 1st DCA 2004), “confirm that factual circumstances exist under which negligence liability can be imposed on a pharmacy for failing to use due and proper care in filling prescriptions, even if the prescription is filled in accordance with the p…
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Karan Oleckna v. Daytona Disc. Pharmacy, 162 So. 3d 178 (Fla. 5th DCA 2015)…due proper care in filling the prescription, id. at 739. However, the court did not say what circumstances might give rise to a negligence claim against a pharmacist. Florida decisions since McLeod provide guidance. In Dee v. Wal-Mart Stores, Inc., 878 So. 2d 426, 427 (Fla. 1st DCA 2004), a doctor prescribed a painkiller containing fentanyl to a patient who had had a Cesarean section. The prescription had no time limit on it. Four months after the prescription was written, the patient had it filled to treat…
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Sorenson v. Prof'l Compounding Pharmacists OF W. Pa., Inc., 191 So. 3d 929 (Fla. 2d DCA 2016)…on and that the failure to do so may give rise to an action for negligence. See Oleckna v. Daytona Disc. Pharmacy, 162 So. 3d 178, 181-82 (Fla. 5th DCA 2015); Powers v. Thobhani, 903 So. 2d 275, 278 (Fla. 4th DCA 2005); Dee v. Wal-Mart Stores, Inc., 878 So. 2d 426, 427 (Fla. 1st DCA 2004). These courts have also determined that this duty to use due and proper care may involve more than simply filling the prescription as written. Oleckna, 162 So. 3d at 182; Powers, 903 So. 2d at 278; Dee, 878 So. 2d at 427. A…1 / 2
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- Grall v. Risden, 174 So. 2d 736 (Fla. 1965)