508 A.2d 1247 (Pa.Super. 1986).Google Scholar

Id. at 1253.Google Scholar

Nonfeasance is the failure to do that which there is a legal duty to do. Several courts have recognized that pharmacists' monitoring of physicians' prescriptions is of benefit to the patient, but they have not imposed a legal duty to monitor. See, Patterson Drug Co. v. Kingery, 305 F.Supp. 821 (W.D. Va. 1969); Supermarkets General Corp. v. Sills, 225 A.2d 728 (N.J.Super. 1966). A duty to monitor was recognized in Speer v. United States, 512 F.Supp. 670 (N.D.Tex. 1981), aff'd, 675 F.2d 100 (5thCir. 1982), but causation was not proven, and the pharmacist was not held liable. But several commentators have predicted the evolution of pharmacist liability for non-feasance. See Greenfield & Hirsh, Pharmacist Liability in Tort, Medical Trial Technique Quarterly 29: 434 (1983); Cerullo, The Pharmacist's Responsibility to the Patient, Trial 17:31 (June 1981); Zimmerly, Lessening Liability Associated with New Drugs and Drug Reactions, Journal of Legal Medicine 4:25, 27 (January 1976).Google Scholar

Misfeasance is the improper performance of an act. Traditionally pharmacists have been held liable for dispensing the wrong drug, or the right drug in the wrong strength, or the right drug with the wrong directions. These routine misfillings raise what is virtually a presumption of liability, with little room to base a defense on professional judgment. See, Pharmacist Liability, American Jurisprudence: Trials 32: 375 (1985); Annot., American Law Reports 3: 4th 270 (1981).Google Scholar

In 1976, Chief Justice Warren Burger said of the pharmacist: “Without minimizing the potential consequences of error in performing these tasks or the importance of the other tasks a professional pharmacist performs, it is clear that in this regard he no more renders a true professional service than does a clerk who sells law-books.” Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 44 U.S. Law Week 4686, 4693 (May 24, 1976). The hue and cry from the pharmacy profession in response to this statement must have been at least partially responsible for the deletion of the statement from the official reporter when the case was subsequently published. But the sad fact for pharmacy is that pharmacists who are defendants in malpractice litigation frequently adopt Chief Justice Burger's argument as their own. This is what happened in Riff, but the court did not agree, stating:Google Scholar

508 A.2d at 1252.Google Scholar

There is a separate issue in the Riff case concerning prescription refill authorization. It was a quantity of suppositories dispensed pursuant to a refill that caused harm to Riff, and the defendant physician stated emphatically that the refill had not been authorized. But this issue is largely irrelevant, and it is not discussed in the holding of the case. Riff could just as easily have been harmed by the initial authorized filling, and an adequate warning would have prevented harm even if the refill was unauthorized.Google Scholar

508 A.2d at 1253, 1254.Google Scholar

Dwight v. Rodrick and Jackson and Cross Chemists Banbury Ltd., Court of Appeal, Donaldson MR and Mary LJ. Dillon JJ dissenting. Nov. 3, 1983. Reported in Medico-Legal Journal 52: 64 (1984).Google Scholar

Medico-Legal Journal 52: 66. Also of interest is the fact that the apportionment of comparative negligence to the pharmacist was targe in both Riff (65 percent) and the Migril case (40 percent), since the pharmacist's responsibility was clearly stated in both cases to be secondary to the physician's primary responsibility.Google Scholar

The 150-page final report of the Nuffield Foundation Pharmacy Inquiry was issued in March 1986. The report states on page 16 that the Migril case “established that the pharmacist's legal responsibility extends beyond the accuracy with which a prescription is dispensed to the nature of the prescription itself.” See, Nuffield Inquiry Backs Expanded Role for Pharmacists in England, American Journal of Hospital Pharmacy 43: 1850 (1986).Google Scholar

476 N.E.2d 881 (Ind.App. 1985).Google Scholar

Id. at 887.Google Scholar

Risk assessment is a highly judgmental process that occurs prior to prescribing. Since decisions on whether to use drugs raise questions about personal values, lifestyles, and attitudes toward risk, physicians often cannot make the decision to prescribe or not prescribe a particular drug without input from the patient. To participate intelligently in the decision, patients need information about the drugs so that they can properly assess the risk to which they may be exposed.Google Scholar

Ramirez v. Richardson Merrell, Inc., 628 F.Supp. 85 (E.D.Pa. 1986); Eldridge v. Eli Lilly Co., 485 N.E.2d 551 (Ill.App. 1985); Jones v. Irwin, 602 F.Supp. 399 (S.D.Ill. 1985); Pysz v. Henry's Drug Store, 457 So.2d 561 (Fla.Dist.Ct.App. 1984).Google Scholar

Hand v. Krakowski, 453 N.Y.S.2d 121 (App.Div. 1982); Perkins v. Windsor Hospital Corp., 455 A.2d 810 (Vt. 1982); Kirk v. Michael Reese Hospital & Med. Center, 483 N.E.2d 906 (Ill.App. 1985) (case discussed hospital liability only, but recognized pharmacists as practitioners within the hospital).Google Scholar