NEXT CASE ON THE COURT'S DOCKET IS YOUR DRUGGIST VERSUS PO WERS , B.A.L. PHARMACY VERSUS POWERS. ARE YOU READY TO PROC EED?
THANK YOU , YOUR HO NOR . GOOD MORNING, YOUR HONORS. MAY IT PLEASE THE COURT. JONATHAN MATZ NER ON BEHALF OF THE PETITIONER THE MEDICINE SH OP. MY COPETITIONER I S REPRESENTED BY MA RK PALMER AT THE COUNSEL TABLE AND S COTT CO LE. GOOD MORNING. WE HAVE SET ASIDE A M OMENT FOR MR . PALMER TO AD DRESS THE COURT WITHIN OUR AL LOTED TIME. THE PETITI ONER S URGE THIS COURT TO QUASH THE OPINION BELOW BECAUSE THE FOURTH DISTRICT COURT OF APP EAL HELD FOR THE FIRST TIME IN THE STATE OF FLORIDA, THAT A PHARMACIST HAS BROAD NEW DUTY TO YS WARN CUSTOMERS OF THE RISKS ASSOCIATED WITH TAKING DRUGS, DISPENSED PURSUANT TO A LAW FUL --
JUSTICE: W OULD YOU S HARPEN OUR ME MORY AT THE O UTSET AS TO WHAT CONFLICT THERE EX ISTS HERE BETWEEN DECISIONS OF THE DISTRICT COURTS.
YES , Y OUR HONOR. IN BEL OW, THE FOURTH DISTRICT, CR EATED THESEBROAD NEW DUTYIES FOR A PHARMACIST INSERTFIED CONFLICT , BUT MOST IMPORTANTLY , THE -- IN CERTIFIED CONF LICT, BUT MOST IMPORTANTLY THE FOURTH D CA'S DECISION DEPARTS FROM THIS COURT'S LONG STA NDING PRECEDENT IN THE McCLOUD CASE.
JUSTICE: LE T' S LO OK AT McCLOUD.WHAT AS PECT OF McCLOUD DEALTWITH THE DU TY OF CARE IN A NEGLIGENCE SNX.
IN THE McCLOUD CASE, THIS COURT SET OUT A BRIGHT-LINE T EST . IF , THERE WAS UNDER McCLOUD , THERE WAS A DUTY FOY A PHARMACIST -- A DUTY FOR A PHARMACIES FOR - - PHARMACIES TO THE PROPERLY FI LL A PRESCRIPTION.
JUSTICE: BUT IS IT TRUE THAT THEY SAID IN THAT CASE I T MAY BE WE LL TO NOTE ALSO THAT WE ARE NOT HERE DE ALING WITH COMPLAINT GROUNDED INMEMBERS OF THE JURY -- IN NEGLIGENCE, AND THEN THEY E ND THE DECISION BY SAYING THE CONCEPT WITH STRICT LIABILITY WITHOUT FAULT SHOULD NOT BE APPLIED TO THE PRESCRIPTION DRUGGIST IN THE INSTANT SITUATION. IT IS UNNECESSARY TO REACHTHAT THE RESPONDENTS FA ILED TO SP LIT DRUG ES OF A COMMODITY. SO THE WHOLE COMP LAINT IS WE DON'T WANT TO MAKE A PHARMACIST STRICTLY LIABLE UNDER A PROD UCT LIABILITYLAW.
I WOULD POINT OUT TWO THING INS THE COURT. FIRST OF ALL I N THE CASE WHICH ALSO CA ME OUT OF THE FOURTH DCA AND UPON WHICHJUDGE ANST EAD PARTICIPATED IN, THE COWER ADDRESSED THAT ISSUE , THE FOURTH DID, AND FOUND -- THE COURT ADDRESSED THAT ISSUE, THE FOURTH DIDAND FOUND NO DISTINCTION ON THE ONE HAND AND NO CLAIM FOR PROD UCTS LIABILITY.
JUSTICE: SO WHY DID THAT CONCLUDE BY SAYING HO WEVER RERENDER OUR FA CTS TO THE SITUATION OF THIS CASE BY S AYING A FAC TUAL SITUATION COULD EXIST AGAINST A DRUGES WHO HAS LAWF ULLY FIL LED A -- A DRUGGIST WHO HAS LAWFULLY LYFILLED A PRESCRIPTION WHICH WAS PROPERLY WRITTEN.
McCLOUD DEALT WITH WHETHER OR NOT THER E WAS A DUTY TO WARN OF SIDE EFFECTSFROM THE PRESCRIBED DRUG.
JUSTICE: IN A PRODUCTS LIABILITY CASE.
IN A PRODUCTS LIABILITY CASE. THERE WAS NO DUTY TO WARN UNDER TH OSE CIRCUMSTAN CES. IT DIDN'T FIT INTO THE SECOND CATEGORY OF DUTIES THAT YOU HAVE REFERRED TO . THERE WAS NO DUTY TO WARN IN THAT CASE AND THEREFORE THE INSTANT CASE DOES NOT FIT INTO THAT EX CEPTION OR THAT HOLE LEFT OPEN I N McCLOUD.
JUSTICE: SO WHAT IS THE ACTUAL H O LDING , HOWEVER, IN THIS CASE? DIDN'T THE COURT REALLY SAY HERE THAT, ON THESE , UNDER THESE CIRCUMSTAN CES, A M OTION TO DISMISS , THEY REALLY WERE DEALING WITH 6 A MOTION TO DISM ISS ISSUE AS O PPOSED TO BECAUSE ARE NOW ARGUING FROM THE FOURTH AS TO WHETHER A PHARMACIST COULD EV ER BE HELD NEGLIGENT UNDER THESE KI NDS OF --
YOU ARE CORRECT , JUSTICEQUINCE AND THAT REALLY GOES TO THE HEAR T OF THE CONFLICT , BECAUSE WHAT YOU HAVE HERE BASED ON THE OPIN ION IN POWERS IS YOU NOW HAVE A CIRCUMSTANCE WHERE, IN THE T RIAL COURTS THAT ARE GOVERNED BY THE FOURTH DCA , YOU CAN ALLEGE A CAUSE OF ACTION BY SIMPLY ASSE RTING A FAILURE OF , ON THE PART OF THE PHARMACIST TO WARN THE CUSTOMER , WHEREAS IN THE FIRST AND THE FI FTH UNDER JOHNSON AND OMNI CARE, YOU CAN'T STATE THAT CAUSE OF ACTION, AND THAT GOES TO THE V ERY HEA RT OF THE CONFLICT IN THIS CASE, WHIC H IS WHY IT IS SO IMPORTANT FOR THIS COURT TO RESOLVE THAT CONFLICT, SO THAT THERE IS UNIFORMITY, BECAUSE YOU ARE DEALING WITH AR RIVE PRESCRIPTION IN THE STATE OF FLORIDA , EVERY TIME A PHARMACIST DEALS WITH A PRESCRIPTION IN THE STATE OF FLORIDA .
JUSTICE: LET ME GO BACK TO A QUESTION I ASKED IN THE PRECEDING CASE, AND THAT IS DID YOU MOVE FOR THIS CASE TO GO EN BANC IN THE FOURTH DISTRICT?
WELL , WE HAD , THE G R OUNDS EXISTED, BECAUSE IT IS OUR FIRM BELIEF THAT THE POWERS CASE OVERRU LES THE PIZZ CASE, BECAUSE THERE IS NO TRUE CONCEPTUAL DIFFERENCE BETWEEN THE TWO. WE DID NOT MOVE FOR A REHEARING EN BANC SIMPLY BECAUSE THE FOURTH RECOGNIZED THERE WAS CONFLICT. THEY CERTIFIED CONFLICT WITH JOHNSON AND THE STATE OF SHARP.
JUSTICE: DO YOU REALIZE THAT THERE ARE DIF FERENT FACTUAL ALLEGATION INS THIS CASE, IN THE POWERS CASE THAN THERE WERE IN THE PRECEDING FOURTH DISTRICT CASE ?
IT IS NOT PRECISELY THE SAME FACTS, BUT I THINK INTELLECTUALLY THAT THERE IS REALLY NO, IT IS WHETHER OR N OT THERE WAS A DUTY TO WARN , AND CLEARLY UNDER McCLOUD THERE IS NOT A DUTY TO WARN . AND UNDER PI ZZ THERE WASN'T A DUTY TO WARN .
JUSTICE: SO IF WE ACCEPT YOUR ARGUMENT , LET 'S SAY THERE IS A PHARMACIST AND ONE PHYSICIAN AND THAT YOU HAVE GOT A SCHEDULE TWO DRUG OXYCONTIN 80 MILLIGRAMS , WHICH IS A CONTROLLED SUBSTANCE NOT ABLE TO B E REFILLED. YOU HAVE TO HAVE A NEW PRESCRIPTION EVERY TIME AND YOU HAVE A PA TIENT COME INTO A PHARMACI ES ON THE MO NDAY AND GET A PRESCRIPTION -- INTO A PHARMACIST ON MONDA Y AND GET A PRESCRIPTION FOR AWEEK. COMES IN ON TUESDAY, COMESIN ON WEDN ESDAY , THURSDAY , AND FIVE D AYS STRAIGHT GETS THE PRESCRIPTION UNDER YOUR THEORY, THE PHARMACIST WOULD HAVE NO RESPONSIBILITY OR LIA BILITY TO THAT PE RSON .
THE PHARMACIST HAS AN OBLIGATION TO MAKE SURE THAT A PRESCRIPTION IS FILLED IN CONFORMITY WITH THE PRESCRIPTION ISSUED BY THE PRESCRIBING PHARMACIST , AND THAT IS BECAUSE THE , BY THE PRESCRIBING DO CTOR , R ATHER , , AND THAT --
JUSTICE: SO IF YOU HAVE A L EGAL PRESCRIPTION FILLED OUT BY A DOCTOR, WE ARE NOT TALKING MULTIPLE PHYSICIANS , ET CETERA , Y OU HAVE GOT ONEDOCTOR, ONE PHARMACY, MOND AY, T UESDAY, WEDNESDAY , TH URSDAY AND FRIDAY, SOMEBODY COMES IN BECAUSE YOU HAVE GOT A DOCTOR THAT IS B A SICALLY NOT COMPLYING WITH THE CON TROLLED SUBS TANCE A CT AND IS JUST GIVING THE PRESCRIPTIONS OUT. YOUR POSITION WOULD BE THAT , IN THE STATE OF FLORIDA THE PHARMACIST HAS NO RESPONSIBILITY TO THAT , NO GATE KEEPING RESPONSIBILITY AT ALL TO THAT CL IENT OR TO SOCIETY.
THE PHYSICIAN , AND PRESUMPTIVELY YOU ARE GOINGTO HAVE A PHYSICIAN WHO CARES FOR THEIR PAT IENT AND WHO WOR KS OUT A PRESCRIPTION P LAN TO TR EAT THE PATI ENT. IN THIS CIRCUMSTANCE , YOU HAD MRS. POWERS, WHO HAD SEEN DR . TABANI 39 TIMES.
JUSTICE: BEFORE YOU GO BACK TO THIS IN ABS TO HIS Q UESTION -- IN A NSWER TO HISQUESTION, WHAT IS THE A N S WER TO JUSTICE BELL 'S QUESTION ABOUT THERE BEING NO GATE KEEPING. IT SEEMS TO ME THAT THAT IS CERTAINLY SIMILAR TO T HE CASE THAT WAS DEC IDED WHERETHERE WAS NO EXPIRATION DATE ON THE PRESCRIPTION , AND WE FOUND THAT , THE COURT FOUND THAT THERE WAS A PROBLEMWITH THE PHARMACIST FILLING THAT PRESCRIPTION JUST ON THE FACE OF IT. IT WAS NOT A PROPER PRESCRIPTION. ON THE FACE OF T HESE , IF YOU HAVE FIVE PRESCRIPTIONS IN A R OW , E ACH DAY , THAT REALLY IS KIND OF ANALOGOUS HERE.
WELL , THE RE IS NO ALLEGATION IN THIS CASE THAT THERE WAS ANYTHING WRONG ON THE FACE OF THE PRESCRIPTION.
JUSTICE: WE UNDERSTAND THAT BUT THAT IS A HYPOTHETICAL. WE ARE TRYING TO DETERMINE THE LIMIT OF DOES A PHARMACIST HAVE ABSOLUTELY NO GATE KEEP ING RESPONSIBILITY HERE.
IT WOULD BE OUR POSITION THAT THE PHARMACIST DOES NOT HAVE ANY GATE KEEPINGRESPONSIBILITY HERE , BECAUSE YOU HAVE TO RELY 'THE DOCTOR WHO HAS FREQUENT VISITS WITH THE PATIENT, WHO HAS RECORDSON THE PATIENT, WHO FOLLOWS U P ON THE PA TIENT TO CREATE THE PROPER DRUG REGIMEN FOR THE PATIENT .
JUSTICE: WHAT DOES THE PHARMACIST DO, REAL LY, IF THEY GET IN THEIR VI EW CONFLICTING PRESCRIPTIONS? THEY KNOW THAT, IF THE PATIENT TAKE S THE TWO CONFLICTING PRESCRIPTIONS, THAT THERE IS A HIGH-RISK OF DEATH THAT THEY KNOW , BECAUSE THEY GR PHARMACISTS AND THEY ARE -- THEY ARE GOOD PHARMACIST S AND THEY ARE VERY KNOWLEDGEABLE , AND THEY KNOW THAT IF THE PATIENT WHO IS FILLING THESE T WO PRESCRIPTION BUYS TWO SEPARATE PHYSICIANS THAT MAY NOT KNOW ANYTHING ABOUT WHAT THE PATIENT IS DOING WITH THE OTHER DOCTOR OR WHATEVER , WHAT IS THE ANSWER , JUST DILEMMA OF THE PHARMACIST, NOW, WHAT DOES THE PHARMACIST D O IN A SITUATIONLIKE THAT ? THEY ARE GOING T O TECHNICALLY FILL EACH PRESCRIPTION. THE PRESCRIPTIONS ARE PERFECTLY LE GAL. BUT THE PHARMACIST KNOWS THAT, A VE RY GOOD PHARMACIST AND VERY WELL EDUCATED ANDKNOWS THAT, IF THEY FILL THOSE TWO PRESCRIPTIONS ANDTHE PATIENT TAKES TH OSE , THAT THERE IS A VERY HIGH PROBABILITY THAT THE PATIENT WILL DI E. WHAT DOES THE PHARMACIST DO? IN OTHER WORDS JUST IN A COMMONSENSE WAY , TELL ME WHAT THE PHARMACIST DOES .
WELL , THAT DILEMMA HAS BEEN THE SAME ALL THE WAY , GOING ALL THE WAY BACK TO McCLOUD.
JUSTICE: DON'T T ELL ME THE DILEMMA HAS BEEN THE SAME GOING BACK TO McCLOUD. TELL ME WHAT IN YOUR VIEW, THE PHARMACIST DOES IN THAT SITUATION.
UNDER THE STATUTES AND UND ER THE ADMINISTRATIVE CODE, THE PHARMACIST HAS AN OBLIGATION TO OFFER TO COUNSEL THE CUSTOMER .
JUSTICE: SO THE PHARMACIST DOES DO SOMETHING IN THAT SITU ATION.
YES, SIR .
JUSTICE: THEY SAY SOMETHING TO THE PATIENT. YOU SHOULD KNOW THAT, IF YOU TAKE TWHOS MEDICATIONS TOGETHER, THERE IS -- T HOSE TWO MEDICA TIONS TOGETHER THERE , IS A HIGH-RISK OF YOUR DEATH. IS THAT WHAT YOU WOULD SAY, YOU WOULD AD VISE THE PHARMACIST TO TELL THAT PATIENT?
YES AND NOT ONLY WOULD IADVISE THE PHARMACIST BUT UNDER THE ADMINISTRATIVE CODE AND UNDER THE STATUTES , THE PHARMACIST HAS AN OBLIGATION TO OFFER TO COUNSEL THE PATIENT , THE CUSTOMER.
JUSTICE: AT HIS DISCRETION AT THE PHARMACIST S DISCRETION.
YES. THAT'S CORRECT. AT THE PHARMACIST S' DISCR ETION .
JUSTICE: SO IF THE PHARMACIST IN THIS CASE DOESN'T TAKE YOUR ADVICE ANDDOESN'T , JUST FILLS THOSE TWO PRESCRIPTION ANSWER THE PATIENT GOES HOME AND TAKES THE -- THOSE TWO PRESCRIPTIONS , AND THE PATIENT GOES HOME AND TAKES THE MEDI CATION AND DIE S,THERE ANY LIABIL ITY ON THEPART OF THE PHARMACIST TO THE PATIENT THAT DIED AND BY THE PHARMACIST THAT DIDN'T TAKE YOUR ADVI CE?
NO. I AM SORE I RE PEAT YOUR QUESTION. -- I AM SORRY. REPEAT YOUR QUESTION.
YOU SA ID THAT THE PHARMACIES IN THE THAT INSTANCE, O KAY, SHOULD COUNSEL THE PATIENT AND TELL THE PATIENT THAT THERE IS THIS PROBLEM AND THIS ISSUE. O KAY. I A M SAYING I F THE PHARMACIST DOESN'T TAKE YOUR ADVICE, JUST FILLS THOSE TWO PRESCRIPTIONS , AND THE PATIENT GOES HOME AND TAKES THEM AND DIES . IS THERE A CAUSE OF ACTION ON BEHA LF OF THAT PATIENT'S ESTATE AGAINST THAT PHARMACIST THAT DIDN'T TAKE YOUR ADVICE?
NO. NO. THE CAUSE OF ACTION SHOULD BE AGAINS T THE DOCTOR , BECAUSE THE PHARMACIST HAS THE OBLIGATION TO OFFER TO COUNSEL. IF, ONCE THE PHARMACIST COUNSELS --
JUSTICE: I AM SAYING THE PHARMACIST DIDN'T DO THAT IN THIS IN STANCE. IN OTHER WORD S YOU ARE ADVISING THE PHARMACIST THAT IF THEY GET IN A SITUATIONLIKE THAT BUT THEY DIDN'T DO IT, SO IS THERE ANY LIABILITY, THEN , ON THE PART OF THE PHARMACIST?
WELL , THERE IS NO , AS J USTICE QUINCE POINTED OUTTHERE IS NO REQUIREMENT THAT THE PHARMACIST COUN SEL. THEY SHOULD OFFER TO COUNSEL . BUT THE PHARMACIST CAN ONLY GO SO FAR. THE PHARMACIST HAS AN OBLIGATION TO OFFER TO COUNSEL , BUT ANYTHING BEYOND THAT WOULD BE SECOND-GUESSING THE DOCTOR. IT HAS TO BE UP TO THE DOCTOR IN THE END TO DECI DEWHAT IS APPROPRIATE. PAIN MEDIC ATIONS ARE DIFFICULT TO REGULATE. AND YOU CAN'T HAVE THE PHARMACIST SECOND-GUESSINGTHE DOCTOR.THE PHARMACIST IS N'T IN APOSITION TO DO THAT. THE PHARMACIST , THE DOCTOR IS IN A UN IQUE POSITION WHERE THE DOCTOR GETS TO EXAMINE THE PATIENT. THE DOCTOR GETS TO RE VIEW THE RECOR DS THAT THAT PATIENT HAS SEEN ANY OTHER PHYSICIANS AND TO DESIGN THE APPROPRIATE DRUG THER APY FOR THAT PATIENT.
JUSTICE: BUT DOCTORS ARE ALSO HUMA N AND THEY MAKE MISTAKES. IS THERE NO DUTY OR RESPONSIBILITY RECOGNIZED UNDER STANDARDS OF PROFESSION IN THE PHARMACY,THAT IF THE PHARMACIST HAS A CONCERN ABOUT THE PRESCRIPTION, IF NOT T O COUNSEL THE PATIENT, TO CONTACT THE PHYSICIAN?
WELL --
JUSTICE: ISN'T IT RECOGNIZED AM ONG PHARMACIST S THAT I F THEY HAVE A CON CERN A BOUT ANY PRESCRIPTION , THAT THEY SHOULD CONSULT THE PHYSICIAN?
WELL, THAT IS WHAT, THAT IS SIMILAR TO WHAT I AM SUGGESTING IS THAT THE PHARMACIST SHOULD COUNSEL THE CUST OMER AND THEN IF THE CUSTOMER STILL HAS ANYCONCERNS, THEY CAN GO BACK TO THEIR DOCTOR AND SAY WHAT IS APPROPRIATE HERE? THE PHARMACIST IS R AISING THESE CONCERNS. WHAT IS APPROPRIATE? IT SHOULDN'T BE FOR THE PHARMACIES TO THE MAKE DECISIONS AND TO SECOND-GUESS THE DOCTOR .
JUSTICE: WOULD IT NOT REQUIRE THAT THE PHARMACIST AT LE AST ALERT THE PATIENTTO GO BACK TO THE DOCTOR? W OULD THAT NOT B E A PROPER FUNCTION?
YES . THE , YOU KNOW, THE PHARMACIST SHOULD COUNSEL THE PERSON TO GO BACK AND CONFER WITH THEIR DOCTOR.
JUSTICE: GOING BACK TO JUSTICE WELLS'S QUESTION , ITSEEMS TO ME AND YOU CORRECT M E IF I HAVE MISINTERPRETED THESE CASES, BUT IN THE O MNI CARE CASE, IT LOOKED TO ME LIKE IT WAS TR YING TO SET U P CONSULTING KIND OF PHARMACIST THROUG H A NURSING HOME, A LITTLE BIT DIFFERENT. IS THAT WHAT OMNI CARE WAS ABOUT?
LO OKING ON A MORE GLOBAL BASIS , I DON'T THINK IT IS DIFFERENT .
JUSTICE: I AM AS KING YOUAM I CORR ECT ? THAT WAS MY REA DING. IT WAS NOT GOING I N TO YOUR LOCAL PHARMACIST , AND AS I READ THE OTHER CASE , THE JOHNSON CASE IT IS PRESCRIPTIONS FOR MULTIPLE PHYSICIANS THAT WERE COMING INTO PLAY , AND M A YBE , HE MAY COME IN MONDAY WITH ONE AND THEN WEDNESDAY WITH SOMEBODYELSE AND FRIDAY. A LITTLE DIFFERENT THAN WE ONLY HAVE ONE PHYSICIAN HERE , CORRECT?
YOU HAVE ONE PHYSICIAN H ERE.
JUSTICE: BUT ARE THERE MULTIPLE PRESCRIPTIONS, DRUGS , ON EACH PRESCRIPTION FORM? OR WHAT IS THE GROVEMENT OF THIS?
WHAT YOU HAVE HERE IS MULTIPLE PHARMACIES WHO A REN'T COMMUNICATING W ITH ONE ANOT HER.
JUSTICE: CAN YOU ANSWER MY QU ESTION OR EXPLAIN , ARE THERE MUP 'TIL HE WILL -- MUL TIPLE PRESCRIPTIONS ON THE FORM THAT WE ARE D E ALING WITH OR ARE WE DEALING WITH OXYCONTIN ONE DAY AND THEN --
I AM NOT S URE WHERE THE RECORD REFLECTS THAT.
JUSTICE: THAT IS CONTEMPLATE I HAVE. IT MAY BE DIF-- CONTEM PLATE I HAVE. IT MAY BE -- IT IS CONTEMPLATIVE. ISN'T THAT WHAT THE FOURTH DISTRICT WAS SAYING THAT WE N EED TO FLUSH OUT SOME OF THESE THINGS TO SEE WHAT IS HAPPENING.THOSE ARE FAR DIF FERENT CIRCUMSTANCES.
THE FOURTH DISTRICT'S OPINION RA ISES PROBLEMS, THOUGH, BECAUSE UNDER McCLOUD YOU HAD ABRIGHT-LINE TEST .
JUSTICE: WELL , I THINK YOU ARE GOING TO RUN INTO SOME PROBLEMS THAT , ASSUMING THAT McCLOUD HAS A BRIGHT LINE PROBLEMS. ISN'T McCLOUD AN EA RLY '60s OPINION? AND WEST WASN'T EVEN THE L AW UNTIL THE SEVENTIES SOMETIMES.I WOULD LIKE YOU TO ANSWER WITHOUT REF ERENCE TO McCLOUD , BECAUSE I THINK THAT IS A PRODUCT CASE, ST RICT LIABILITY CASE AND DOESN'T DEAL, IT TALKS ABOUT THE PRODUCT BEING DEFECTIVE. THIS IS VERY DIFF ERENT. SO COULD YOU ANSWER WITHOUT REFERENCE TO McCLOUD.
I AM NOT SURE I UNDERSTAND.
JUSTICE: YOU ARE TRYING TO ANSWER ALL THESE QUESTIONS IN REFE RENCE TO McCLOUD AND SAYING THERE AREBRIGHT LINE R ULES TO EVERYTHING AND THEY ARE IMMUNE IS WHAT I AM SAYING , SO I AM ASKING YOU TO ANSWER IN REFERENCE TO ASSUME ING McCLOUD DOES NOT GIVE IMMUNITY TODAY IN 2006 IS HOW YOU ARE READ ING IT , HOW DO ALL THESE CASES FIT TOGETHER? ISN'T IT DIFFERENT IF YOU HAVE ONE PHYSICIAN PROVIDING ONE PRESCRIPTION WITH FOUR DIFFERENT DRUGS THAN FOR TEN PHYSICIANS EACH GI VING HIM ONE AND THEY COME IN OVER A PERIOD AFTER MONTH, AREN'T THOSE DIFFER ENT? WOULDN'T THEY BE ANALYZED DIFFERENTLY?
I AM NOT SURE THAT THEY WOULD B E ANALYZED DIFFERENTLY. I THIN K YOU HAVE TO LOO K TO THE RELA TIVE POSITIONS OF THE PHARMACIST ON THE ONE HAND AND THE PRESCRIBING DOCTOR ON THE OTHER HAND .
JUSTICE: RIGHT.
AND THE PHARMACIST IS IN THE BEST POSITION TO EVALUATE WHETHER OR NOT THE PRESCRIPTION IS APPROPRIATE , WHETHER OR NOT THE DRUGS ARE DISPENSED CORRECTLY , PURSUANT TO THAT PRESCRIPTION, AND ON THE OTHER HAND YOU HAVE GOT THE PHYSICIAN WHOSE I N THE BEST POSITION TO EVALUATE WHETHER OR NOT, FOR INSTANCE, THERE ARE CONFLICTS BETWEEN THEDRUGS , WHETHER OR NOT THESTRENGTH OF THE DRUG --
CHIEF JUSTICE: YOU ARE WELL INTO YOUR REBUTTAL TIME.
OKAY , THEN I AM GOING T O HOLD MY TIME FOR REBUTTAL. THANK YOU , Y OUR HO NOR .
CHIEF JUSTICE: ARE YOU GOING TO DO IT NOW? I THOUGHT --
THERE WAS A RESERVATION OF TIME FOR ME . C HIEF CHOF FOR REBUTTAL?
TO --
CHIEF JUSTICE: FOR REBUTTAL? ONE MINUTE?
PLEASE .
CHIEF JUSTICE: O KAY .
ART POMERANTZ FOR YOUR DRUGGIST AND BESIDES BEINGAN ATTORNEY, I AM ALSO A FLORIDA -REYNOLD PHARMACIST. WHAT IS IMPOR TANT TO -- FLORIDA REGIST ERED PHARMACIST. WHAT IS IMPORTANT TO NOTE IS ONCE A PATIENT GETS TO THE PHARMACY , THEY HAVE ALREADY GONE TO THE DOCTOR , T O THE HOSPITAL , TH ROUGH MRI'S , 20 DIFFERENT BLOOD TES TS , A PHYSICAL. B Y THE TIME THEY GET TO A PHARMACIST, ALL THAT COMES OUT FROM A MEDICAL FIL E IS A CHART THAT IS THIS SIZE , SOMETHING THE SIZE OF A POSTCARD. THAT IS WHAT A PHARMACIST , EVEN THE BEST PHARMACIST , JUSTICE ANSTEAD.
JUSTICE: BUT IF YOU SEE A PRESCRIPTION ON MONDAY AS A PHARMACIST ON MONDAY FOR OXYCONTIN AND ON WEDN ESDAY THE SAME AMOUNT OF OXYCONTIN 80 THAT THE F I RST PRESCRIPTION COULD NOT HAVE BEEN USED , UNDER THE OMBUDSMAN ACT , UNDER 8 93 IN THE FLORIDA STATUTE AND YOUR UNDERSTANDING OF THE ABUSETHAT HAS BEEN HAPPENING THROUGHOUT THIS COUNTRY OF OXYCONTIN AND PHYSICIANS O VER PRESCRIBING IT , IS I T YOUR POSITION AS A PHARMACIST THAT YOU HAVE NO DUTY TO CONT ACT THE PHYSICIAN AND SAY DO YOU REALIZE THAT YOU JUST PRESCRIBED THIS PERSON THIS ON MONDAY? AND THEY HAVE GOT TEN ANOTHER PRESCRIPTION FROM THE SAME PHYSICIAN , OR DO YOU HAVE ADUTY TO T ELL THE CLIENT,LOOK, W HAT HAPPENED TO THEONES FROM MONDAY ? FOR A DRUG THAT IS PRIMARILY USED FOR VERY CHRONIC PAIN , AND YOU HAVE THE PATIENT WALKING IN AMBULATORY TO YOUR PHARMACY.
I UNDERSTAND , JUSTICE BELL. AND TOD AY'S DRUG , THE DRUG DU JOUR BE FORE WAS QUAALUDES , AND THAT WAS ALSO VIEWED AS OXYCONTIN IS. THE DIFFERENCE IS THAT , WH ENYOU HAVE SOMEONE COMING IN WITH JUST THAT PRESCRIPTION FOR 80 TODAY, YOU CAN TAKE IT AND B Y THE WA Y THE PRESCRIPTIONS ARE FOR 30. IF YOU LOOK AT ALL OF THE PRESCRIPTION THAT IS ARE LISTED THERE, THEY ARE IN THE NORMAL RANGE.
CHIEF JUSTICE: I AM SORRY . YOUR TIME IS UP . THANK YOU.
GOOD MORNING. MAY IT PLEASE THE COURT. MY NAME IS STEPHANIE ALEXANDER AND I AM HERE WITH MY PART NER PETER HERMAN ON BEHALF OF THE RESPONDENT GAIL POW ERS. I THINK THE COURT HAS REALLY HIT IT ON THE HE AD IN THESENSE THAT THE WAY THIS CASE IS POSTURED IS IT IS A DUTY CASE IN THE SE NSE THAT THE T RIAL COURT BELOW HELD THATTHERE WAS NO LAW THAT HE LDTHERE WAS A DUTY ' ON THE PART OF PHARMACISTS , AND ALL THE COURT DID WAS SAY THERE WAS A REASONABLE DUTY UNDER THE STANDA RD OF CARE ANDTHERE WAS NEGLIGENCE AND ALLOWED THESE CASES TO PROCEED.NOW, THE SCOPE OF THE DUTY --
JUSTICE: NOW , IF WE START EXPANDING INTO THIS , A REN'T WE E NDING UP WITH PE OPLE ENTIRELY DIFFERENT DISCIPLINES , OKAY, BEING CHARGED REALLY WITH VIRTUALLY THE SAME RESPONSIBILITIES THAT IS THAT THERE IS REALLY A LONG H ISTORY HERE OF THE PHYSICIANS REALLY BEING THE ONES THAT ARE RESPONSIBLE FOR COUNSELING WITH PATIENTS AND DECIDING WHAT THE BEST COURSE OF TREATMENT IS , AND PHARMACISTS ARE FITTING INTO THE CATE GORY WHERE THEY ARE REALLY TECH NICAL , TRAINED TECHNICALLY , IN TE RMS OF MIXING COMPOUNDS AND THIS KIND OF THING , AND IN F ACT , IN MOST MA JOR PHARMACIES , THERE IS PROBABLY MORE THAN ONE PHARMACIST , AND THERE IS A LIMI TED A B ILITY , REALLY , TO KNOW EVEN ABOUT THESE PAST PRESCRIPTIONS, WHETHERTHEY WERE FIL LED SOME PLACE ELSE OR WHATEVER , SO MY QUESTION TO YOU IS , ONCE WE T AKE A STEP , OKAY , SORT O F OVER A LINE AND SAY, NO , NOW WE ARE GOING TO PUT RESPONSIBILITY ON PHARMACIST S, TOO , THAT REALLY EXTEND TO THE PATIENT , AND IN A MORE DIRECT RELATIONSHIP , ARE N'T WE REALLY O PENING UP SOMETHING THAT WE HAVE DECLINED TO OPEN UP BEF ORE, AND AS FAR AS IN THE L EGAL FIELD AT LE AST , THAT THERE REALLY WOULD BE NO JUSTIFICATION FOR THAT?
WELL , I DON'T THINK THAT WE ARE SUGGESTING THAT WE OPEN A BIG PANDORA'S BOSS BOX.I DO TO TALLY AGREE -- PANDORA 'S BOX. I DO TOT ALLY AGREE THAT IN NORMAL CIRCUMSTANCES A DOCTOR SHOULD BE REL IED UPON BECAUSE THE DOCTOR KNOWS THE PATIENT AND THE TREATMENT RIDGE I AM , BUT THE T YPE OF -- REGIME , BUT THE TYPE OF CIRCUMSTANCES THAT WE HAVE POSTED HERE TODAY -- POSITEDHERE TODAY ARE FOR EX AM PLE THE PHARMACIST MAY KNOW THATTHE PATIENT HAS AN ALLERGY THAT THE DOCTOR DIDN'T KNOW ABOUT AND THE PHARMACIST MAYKNOW THAT THE PATIENT IS GETTING A CONTRAINDICATED DRUG BECAUSE THERE IS ANOTHER DOCTOR
JUSTICE: YOU ARE ADDING THESE THINGS IN , AND AREN'T YOU T URNING THE PHARMACIST INTO SOMETHING THAT THE PHARMACIST IS NOT . I LI KEN IT TO T AKING A PERFECTLY VALID CHEC K TO THE BANK AND YOU HAVE GOT MONEY IN YOUR ACCOUNT AND YOU SAY PLEASE CASH THIS CH ECK FOR ME, O KAY , AND THE DUTY OF THE BA NK I S TO CASH THE CHECK, R IGHT ? NOT TO TALK ABOUT WHAT YOUYOU ARE GOING TO US E THE M ONEY FOR OR WHET HER IT IS TO DE PLETE YOUR ACC OUNT OR ALL K INDS OF OTHER THINGS , AND THE WAY THAT YOU TALKED ABOUT THE PHARMACIST BEING IN THIS POSITION , THAT MAY ALL BE TRUE , BUT WHERE DOES THE PHARMACIST GET THESE DUTIES TO DO ALL THESE OTHER THINGS?
RIGH T. I THINK , WELL , THERE IS A STANDARD DUTY OF ANY PROFESSIONAL TO USE DUE AND REASONABLE CARE, BUT I THINK A PART FRO M THAT IF YOU LOOK IN THE RISE IN THE LAW FROM THE OVE R 90 STANDARDS AND THE DUTY OF COUNSELI NG AND SCREENING , FOR EXA MPLE CODE 64 B 16-2718, REQUIRES A PHARMACIST WITH RESP ECT TO EACH PRESCRIPTION TO SC REEN EVERY SI NGLE ONE FOR OVER UTILIZATION AND UNDER YOUTH , THEY WERE -- UNDER UTILIZATION , THERAPEUTIC CONTRAINDICATIONS --
JUSTICE: BUT IF YOU LOOK AT THOSE DUTIES , THEY AR ISE FROM 4 65 , CORRECT?
CORRECT .
JUSTICE: AND 465 SAYS SPECIFICALLY THE SOLE LEGISLATIVE PURPOSE FOR ENACTING THIS CH APTER IS TO MAKE SURE THAT EVERY PHARMACIST THAT PRACTICES IN THIS STATE M E ETS CERTAIN REQUIREMENTS. IT IS A LICE NSING STAT UTE.
RIGHT.
JUSTICE: SO HOW DO WE APPLY THOSE STANDARDS IN A LICENSING STATUTE WHERE THE LEGISLATURE SAYS THIS IS OUR ONLY PURPOSE IS TO MA KE SURE THAT WE HAVE PROPERLY LICENSED PHARMACISTS , HOW DO WE AP PLY THAT FOR NEGLIGENCE?
I THINK THAT THERE ALSO IS PROVISIONS IN THE STATUTE WHICH SAYS THAT IT IS A LEARNED PROFES SION. FOR EXAM PLE THERE IS ALSO THE PROV ISION IN ONE OF THE 465S THAT SAYS THAT THE REFILLING OF EXIST I HAVE PRESCRIPTIONS IS OUTSIDE THESTANDARD OF CARE, REGARDLESS OF WHETHER OR NOT IT HARMS PATIENTS. NOW, I DON'T KNOW IF THOSE STATUTES RISE TO THE LEVEL OF NEGLIGENCE PER SE IN TERMS OF DECIDING WHETHER OR NOT THERE IS ULTIMATE LIABILITY, BUT I DO THINK THAT THEY INFORM THE STANDARD IN WHAT THE REASONABLE STANDARD IS , AN D I THINK THAT THE QUESTIONSFROM THE BENC H ARE CORRECT. WHAT WE URGED BE LOW WAS A VERY, I THO UGHT , SE NSIBLE RATIONALE, WH ICH IS THE PHARMACIST IS DESIGNED NOW, A FTER OVER -9 0 AND WITH THESE GATE KEEPING FUNSINGS WHICH THEY ACKNOWLEDGE -- FUNCTIONS WHICH THEY ACKNOWL EDGE THAT THEY HAVE. THEY ACKNOW LEDGE TODAY THAT THEY HAVE A DUTY .
JUSTICE: LE T ME AS K YOU A QUESTION ALONG THAT LINE , WHICH YOU ACKNOWLEDGE, YOUR OPPONENT , SA ID THAT THE FOURTH DISTRICT IN THEIR EARLIER CASE HAD MADE ADECISION THAT THERE WAS NO DUTY FOY ADD ICTION AND THETHING THAT IS -- DUTY FOR ADDICTION AND THE THINGS THAT ARE SET FOR TH IN THAT C ASE. WHAT IS HAVE YOU ALLEGED DIFFERENTLY THAT WOULD DISTINGUISH YOUR CASE , POWERS CASE FROM THE EARLIER CASE?
WELL , I THINK IN THE PIZZ CASE, THAT WAS THE QUAY LEWD CASE IF I REMEMBER AND -- THE QUAALU DES CASE AND IF IREMEMBER THAT WE NT ON FOR OVER NINE YEARS , SO THERE WASN'T ANY SENSE OF IMMEDIATE HARM OR GATE KEEPING FUNS. I THINK THAT IS THEDISTINCTION.I THINK THAT THE PIZZ CASE IS FROM THE 1980s , W HICH IS WELL BEFORE THE GATE KEEPING FUNCTIONS THAT CAME IN IN THE STATUTES AND THE ADMINISTRATIVE CODE , TO THE EXTENT THAT THEY WOULD NOT HAVE HAD A DUTY ANY THE 1980s .
JUSTICE: IF THIS COURT AFFIRMED , HOW ARE T R IAL JUDGES GOING TO KNOW WHAT DOESN'T STATE A CAUSE OFACTION UNDER THE EA RLIER FOURTH DISTRICT CASE AND WHAT DOES STATE A CAUSE OF ACTION NOW , UNDER THE LATER CASE?
I AG REE. I THINK UNDER NOT ICE PLEADING , YOU SI MPLY ALLEGE FACTS THAT GO TO THEELEMENTS. B REACH OF CAUSATION AND DUTY DAMAGES, BUT I THINK IF YOU ARE LOOKING FOR A TEST HERE IS WHAT I THINK MAKES SENS E. WE KNOW THAT THEY HAVE A GATE KEEPING FUNS AND A C TIVE DUTY -- KEEPING FUNS AND AN ACTIVE DUTY TO COUNSEL A PATIENT AND IF THERE IS APROBLEM TO RESOLVE IT , AND WHAT WE HEARD WAS IF A PHARMACIST GETS A PRESCRIPTION AND LOOKS AT IT AND LOOKS U P AT THE PATIENT AND SAYS TO THEMSELVES THAT THIS PATIENT IS GOING TO BE DEAD TO NIGHT IF I FILL THIS PRESCRIPTION OR THEY AREGOING TO BE SERIOUSLY INJURED SHO RTLY , THEN THEY HAVE A DUTY TO DO SOMETHING R IGHT THEN.
JUSTICE: I THINK THAT IS WHAT JUSTICE WELLS IS ASKING ABOUT IS WHAT HAS BEEN ALLEGED HERE, BECAUSECERTAINLY THAT IS NOT THE CIRCUMSTANCE IF YOU FILL ONE FROM TEN DIFFERENT PHYSICIANS AND YOU GO TO 15 DIFFERENT WALG REENS, SO IT IS A DIFFERENT SCENARIO AND WHAT THEY HAVE ALLEGED HERE IS A DIFFERENT SCEN ARIO, A TRIAL JUDGE MAY HAVE NOTI CED THE PLEADING BUT YOU STILLHAVE TO FIND THE ULTIMATE FACTS BEYO ND WHAT IS BREACHED. YOU CAN'T JUST SAY YOU HAD ADUTY AND YOU BREACHED IT . LET'S GET IT TO A JURY. YOU HAVE TO EXPLAIN THE FACTS. EXPLAIN WHAT THE DUTY IS HERE AND LI MITED , IS IT WIDE OPEN?
I THINK THE DIET OF CARE NEEDS TO BE FLUSHED OUT A S EACH FACT UAL SI TUATION DEFENDANTS BY THE CASE LAW , SO I DON'T THINK THAT YOU CAN NECESSARILY STATE WHERE THE LINES ARE BUT I THINK THE FACTS THAT ARE PRESENTEDHERE ARE THAT THE WO MAN WAS G ETTING MU LTIPLE PRESCRIPTIONS FOR , PRESCRIPTIONS FOR MU LTIPLE NARCOTICS WHICH WERE CONTRAINDICATED.YOU YOU ARE NOT SUPPOSED TO GET OXYCONTIN AT THE SAMETIME YOU ARE GETTING PERCOSET.
JUSTICE: ON THE SAME FORM?
SHE WAS GETTING THEM ATTHE SAME TIME AND HA NDING THEM IN . EACH PRESCRIPTION HAS TO BE ON A DIFFERENT PIEC E OF PAPER .
JUSTICE: FILL ED ON THE SAME DAY.
FILLED AT THE SAME TIME ON THE SAME D AY AND ALSO FOR NARCOTICS AND DIAZEPAM , WHICH ALSO WERE CONTRAINDICATED AND ALSO GETTING THEM IN A QUANTITY THAT CLEA RLY I N DICATED ABUSE, AND IF YOU WA NT TO GO BACK TO H O W CASE LAW IS EVOLVING , I THINK IT IS CLEAR THAT IF IT IS SOMETHING THAT IS DRUG-SPECIFIC, IN THE SE NSE THAT YOU DON'T NEED TO KNOW MORE ABOUT THE PATIENT THAN YOU ALREADY DO, YOU DON'T NEED TO KNOW MORE ABOUT THE HISTORY THAN WHAT YOUALREADY DO AND WHAT THE TREATMENT REGIME IS BE BUT YOU KNOW THAT THAT D O SAGE IS GOING TO BE HARM FUL , TO XIC , AND --
JUSTICE: TALKING ABOUT OXYCONTIN SO THAT YOU GET CONTINUES RELIEF AND DON' T HAVE TO SHOOT IT UP IN SIDE THE AR M. IS THERE ANY DIFFERENCE IN WHAT YOU PLEAD THERE? FOR EXAM PLE WHAT IF YOUR CLIENT OR THE DECEDENT HAD CRUSHED THE DRUG AND USED I T ADVERSE TO WHAT IT IS PRESCRIBED FOR IN THAT MANNER? IS THE PHARMACIST STILL RESPONSIBLE IF THEY HAVE SOME QU ESTION ABOUT WHETHER YOUR CLIENT WAS A DRUG ABUSER?
WELL , I THINK THAT WHEN THE LEVELS ARE SO EXTREME AND GI VEN THE DR UG THAT IT IS, I THINK TH EY HAVE A DUTY TO CO NTACT THE PATIENT AND CONTACT THE PRESCRIBER.NOW , ULTIMATELY THE DUTY MAY NOT BE VERY EXTENSIVE, IN THE SENSE THAT THEY MAY HAVE TO QUE STION THE PERSON WHO IS GETTING THE PRESCRIPTION. IF THATAL LACE THEIR CONCERNS, THEN -- IF THAT ALLAYS THEIR CONCERNS , THEN --
JUSTICE: WHERE DOES THE DUTY COME FROM?
I THINK THE DUTY OF THE PROFESSIONAL TO USE REASONABLE CARE , AND I THINKTHAT IF YOUR PROFESSION P UTS SOMEONE IN A ZONE OF RISK, THEN YOU HAVE TO RESPOND TO THAT ZONE OF RISK BY MITIGATING THE HARM AS BEST THAT YOU CAN , AND I THINK THAT THAT DUTY IS CONFIRMED W ITH THE ADMINISTRATIVE CODE SAYS THAT YOU SHALL AS A PHARMACIST, IF YOU SU SPECT CONTRAINDICATIONS OR M ISUSE , YOU SHALL TAKE STEPS TO AVOID IT. THAT IS VERY ACT IVE. YOU SHAL L AND ALSO IF YOUCAN'T AVOID IT ANY OTHER WAY , YOU YOU WILL CONTACT THE PRESCRIBER.
JUSTICE: I WANT TO COME BACK TO MY PO INT WHICH BOTHERS ME, W HICH IS ADMITTEDLY A PROCEDURAL POINT , BUT I AM CONCERNED THAT THE , THAT IN THE EARLIER FO URTH DISTRICT CASE , THEY SAY THAT THE ALLEGATION THERE WAS BECAUSE APPELLEE KNEW OR SHOULD HAVE KNOWN THAT THE USE OF THIS DRUG OVER AN EXTENDED PE RIOD OF TIME WOULD SUBJECT APPELLANT TO PHYSICAL AND PSYCHOLOGICAL DEPENDENCE ANDADDICTION.THEY HE LD THAT THAT DID NOT STATE THE CAUSE OF ACTION .
RI GHT.
JUSTICE: NOW , ARE YOU SAYING THAT THAT IS STILL THE LAW , THAT THAT DOESN'TSTATE A CAUSE OF ACTION , BUT THAT YOUR CASE ALLEGESSOMETHING DIFFERENT, OR ARE YOU SAYING WE SHOULD COME I N AND QUASH THE FOU RTH DISTRICT 'S , THIS PRESENT CASE AND THEIR EA RLIER CASE?
WELL , I THINK THAT I W OULD GO BACK TO THE IMMEDIACY OF THE HARM. I SO RT OF PASSED THE QUAALUDES THERE. I NEVER ACT UALLY KNEW THATYOU COULD GET QUAALUDES BY PRESCRIPTION. I DON'T KNOW WHAT THEY COULD BE PRESCRIBED FOR BUT EVIDENTLY THEY WERE ABUSED AND PRESCRIPTIONS WERE OVER A NINE-YEAR PERIOD THAT CAUSED THE HARM, AND I DO THINK THAT , I DON'T KNOW EXACTLY WHAT DOSAGE THE PERSON WAS GETT ING, IF IT WAS EXCESS IVE. OBVIOUSLY IT WASN'T IMMEDIATELY TOXIC AND HARMFUL BECAUSE THE PERSON GOT THE PRESCRIPTIONS FOR NINE YEARS, SO IN A SENSETHEREFORE , LOOK ING AT A TEST OF A GATE KEEPING FU NCTION , WHETHER THE PRESCRIPTION IN QUESTION WOULD ACTU ALLY ALERT A REASON ABLE PHARMACIST TO INQUIRE FURTHER , I AM NOT REALLY S URE OF THE FACTS , BUT I DO THINK THAT , SINCE PI ZZ IS FROM THE 1 980s AND THOSE OVER SCREENING FUNCTIONS HAVE CHA NGED OVER TIME AND IN FACT THE DUTIES OF THE PHARMACISTS HAVE INCREASED, I THINK IT IS IMPORTANT TO RESPECT THE CHANGE IN PHARMACY. IF YOU LOOK AT McCLOUD, IT TALKS ABOUT COMPOUNDING FROM THE 19 60 s , AND IF YOU REMEMBER IT 'S A WONDERFUL LIFE WHERE THE MAN PUTS TOGETHER THE BILLS AND HARRY BAILLY TRIES TO STOP HIM BECAUSE HE PU TS TO GETHER THEWRONG ONE. THE PHARMACIST PUTS THE LITTLE PILLS TO GETHER AND THEN WITH THE RISE OF BIG PHARMACEUTICAL COMPANIES , THE PHARMACIST'S R OLE REALLY ERO DED BECAUSE THE DRUGS WERE BEING PUT TOG ETHER BY THESE BIG MANUFACTURING COMPANIES , AND THE REASON THAT WE GOT THE OVER 90s SCREENING REQUIREMENTS AND THINGS LIKE THAT WERE BECAUSE THE PHARMACISTSTHEMSELVES IN THEIR PROFESSIONAL DUTIES , W ANTED A MORE ACTIVE ROLE IN SCREEN ING PRESCRIPTIONS.
JUSTICE: LET ME ASK YOU A COUPLE OF QUES TIONS ON THE SCOPE OF THE DUTY. ARE YOU CLAIMING THAT THIS DUTY SHOULD APPLY ONLY TO A SCHEDULE TWO CONT ROLLED SUBSTANCE OR TO ANY K IND OF PRESCRIPTION?
I THINK IT APPLIES T O ANYPRESCRIPTION WHERE THE PHARMACIST KNOWS OR SHOULD HAVE REASON TO KNOW THAT IT IS GOIN G TO CAU SE A SE RIOUS ADV ERSE SIDE EFFECT LIKE AN ENERGY , CONTRAINDICATED DRUGS .
JUSTICE: BUT IN THIS CASE IF THE DRUGS WERE TA KEN AS PRESCRIBED, THIS LA DY WOULD NOT HAVE DIED THERE.IS NO ALLEGATION THAT THESE DRUGS AS PRESCRIBED ANDGIVEN TO HER CAUSED HER DEATH.
NO , I THINK THAT THERE IS ACT UALLY, AND THE CAUSE OF DEATH --
JUSTICE: IF SHE HAD TAKENTHE 80 MILLIGRAM OXYCONTIN , IT WAS THE NONTHERAPEUTIC DOSE IN YOUR COMPLAINT. YOU ALLEGE IT WAS A NONTHERAPEUTIC DOSE , ANDWHAT WAS THE CAUSE OF THE NONTHERAPEUTIC DOSE?
WHAT WAS THE CAUSE OF THE NONTHERAPEUTIC DOSE?
JUSTICE: IF SHE HAD TAKENTHE MEDICINE AS PRESCRIBED B Y THE DOCTOR .
I THINK YOU ARE GETTINGTO WHAT RESPONSIBILITY SHEMAY HAVE HAD I N OVERALL APPORTIONMENT OF RESPONSIBILITY, AND I THINKTHAT IF I UNDERSTAND YOUR QUESTION, IS AN IS SU E FORTHE FACT FINDER IN TE RMS OF PROPORTIONING RESPONSIBILITY. IS THAT WHAT YOU ARE SAYING?I A M SAYING ALSO NOT ONLY THE NONTHERAPEUTIC DOSE BUT ALSO THE COMBINATION OF NARCOTICS AND THE COMBINATION OF THE NARCOTICS WITH THE DIAZEPAM , AND SINCETHERE IS SO MUCH GOING ON , IT IS UP TO THE DEFENDANTS TO SORT OUT AMONGST THEM IF IT CAN BE ASSORTED OUT , BEARS THE ULTIMATE RESPONSIBILITY, AND I THINKTHAT IS WHAT THE FACT F INDERS ARE FOR IN THE SENSE THAT --
JUSTICE: I AM ASKING IF THE PHARMACIST A S A LEGALPRESCRIPTION, FILLS IT LEGALLY AND ASSUMES THAT THE PATIENT IS GOING TO USE IT AS PRESCRIBED , IS I T YOUR POSITION THAT THIS PL EADING IS BEYOND THAT ?
YES.
JUSTICE: BECAUSE THERE IS NO A D VERSE REA CTION , AS FAR AS THE CAUSE OF THE DE ATH. YOU GO BACK TO WAY BACK WHEN SHE STARTED TAKING MEDICATIONS BUT YOU G O BACK TO THE CAUSE OF THE DEATH.
I THINK THE ISSUE MAYBE YOU ARE GETTING TO IS ONETHAT THE PHARMACIST SHOULD HAVE INTERSEEDED OR SCREENED , AND I THINK THAT AT ANY P OINT IN TIME THE LEVEL OF SUSPICION WAS THAT THEYSHOULD HAVE BEEN AL ERTED AND NOW AT THIS PO INT IN TIME IT IS HARD TO GO BACK AND SAY, WELL, IF THEY HAD INTERCEDED THEN THIS WOULD HAVE HAPPENED OR THAT WOULD HAVE HAPPENED AND WE ARE LEFT WITH THE FACTS AS WE FIND THEM. AM I ANSWERING YOUR QUESTION?
JUSTICE: I GUESS YOU ARE NOT MA KING A DISTINCTION BETWEEN THE PHARMACIST SHOULD HAVE KNOWN EARLY ON THAT THIS LADY HAD A DRUG USE PROBLEM. THEY SHOULD HAVE INTERVENED EARLIER , WHICH WOULD HAVE CAUSED HER NOT TO BE ADDICTED AND ULTIMATELY LED TO HER DEATH B Y MISUSE OF THE DRUG.
WELL , I THINK THAT , SURE .
JUSTICE: I A M T RYING TO GET THE COUNT - -
I UNDERSTAND. ULTIMATELY WE PLED THAT THE COMBINATION OF DRUGS WAS TOXICS I CAN AND I THINK THAT THE -- TOXIC, AND ITHINK THAT THE CAUSE OF DEATH WAS FROM B OTH OXYCONTIN AND HYDRO CODOANE AND A MULTIDRUG TOXI CITY.
JUSTICE: ISN'T THIS ACASE WITH A MEDICAL MALPRACTICE CLA IM? WHY DOESN'T THE PHARMACIST NOW BECOME A HEALTH CARE PROFESSIONAL UNDER THESTATUTE , WHERE YOU HAVE TO HAVE NOTICE AND EX PERTS , ALLOF THOSE PRE-SUIT SCRE ENING REQUIREMENTS ?
I AM SOR RY. I ASKED HIM BECAUSE I DIDN'T HANDLE IT AT THE TR IAL COURTLEVEL , BUT THE INFORMATIONTHAT I HAVE IS THAT PHARMACIST S HAVE BEEN EXCLUDED FROM THE NOTICE PROVISIONS OF THAT STATUTE FOR A LA RGE PERIOD OF TIME. AND I THINK THAT THE RE IS A OVERLAP IN THE MEDI CAL ISSUES, BUT KEEP IN MIND THAT THEY HAVE A VERY SPECIFIC PROFESSION, WHICHIS TO UNDERSTAND DRUGS AND HOW THEY INTERACT .
JUSTICE: BUT IT SEEMS TO ME LIKE YOU ARE NOW ASKING US TO IMPOSE A DUTY THAT MAY G O AT LE AST IN SOME CASES , BEYOND THEIR EXPERTISE, WHICH IS TO DETERMINE , B ASED ON THE PARTICULAR CIRCUMSTANCES OF THE PATIENT , AND THE DRUGS PRESCRIBED , WHETHER THOSE DRUGS AREAPPROPRIATE , E ITHER AT ALL OR IN COMB INATION WITH OTHER DRUGS FOR THAT PARTICULAR PATIENT, AND THOSE PARTICULAR CIRCUMSTANCES .
I DON'T THINK WE ARE HONESTLY ASKING THEM TO BE MEDICAL EXPE RTS. I DO THINK THAT THAT IS THE PROVINCE OF THE DOCTO R.IF YOU LOOK AT THE SCREENING DUTIES AND THE DUTY TO INTERCEDE AND CONT ACT THE PRESCRIBER, ACTUALLY WHEN YOU WEIGH AGAINST THE POTENTIAL HARM , THE DUTY IS PRETTY MINIMA L. WE ARE NOT ASKING THEM TO O PINE, T HIS I S DEFINITELY W RONG OR THIS IS MEDICALLYTHIS IS CONTRAINDICATED. WHAT WE KNOW IS THAT FROM THEIR EXPERTISE , THEY HAVE KNOWLEDGE ABOUT DRUGS THAT IS ACTUALLY SUPERIOR TO DOCTORS , AND IF A QUESTION IS R AISED ON CONTRAINDICATIONS OR MISUSE , THAT THEY HAVE A DUTY TO CONTACT THE PRESCRIBER, ANDI THINK ONCE THEY DO. THAT
JUSTICE: WHAT HA PPENS IF THEY TR Y TO CONTACT THE DOCTOR AND THE DOCTOR IS NOTAVAILABLE , THE DOCTOR IS IN SURGERY. GOING TO BE IN SUR GERY ALLDAY. NOW IS IT THE DUTY TO WITHHOLD THAT MEDICATION WHICH MAY CAUSE OTHERPROBLEMS TO THE PATIENT, OR HAS SHE COMPLIED WITH THE DUTY AND NOW ATTEMPTED CONTACT , COULDN'T CONTACT THE PHYSICIAN , GO AHEAD AND GIVE THE MEDICATION?
I THINK IT DEPENDS ON THE CIRCUMSTANCES.
JUSTICE: THAT IS THE PROBLEM IT DEPENDS ON THE CIRCUMSTANCES , BECAUSE NOWYOU ARE PUTTING THE PHARMACIST BETWEEN A ROCK AND A HARD PL ACE, ANDWHATEVER THE PHARMACIST DOES MAY RESULT IN A LAWSUIT AND, ALSO, JURY TO THE PATIENT.
I UNDERS TAND.
JUSTICE: SO IF THERE IS A DUTY IT HAS GOT TO BE VERY CLEAR WHAT THE DUTY IS THE.
I UNDERSTAND JUSTICE CANTERO AND I THINK THEY ACTUALLY HAVE THAT DUTY NOW. IF SOMEONE IS TRYING TO REFILL A PRESCRIPTION FOR EXAMPLE AND THEY SAY I REALLY NEED THIS MEDICINE , IT IS MY UNDERSTANDING THAT THEY HAVE AUTHORITY TO ISSU E A S E VERAL DAYS' SUPPL Y WHILETHEY ARE WAITING TO GET ARESPONSE FROM THE PHYSIC IAN , SO I T MIGHT BE A CIRCUMSTANCE LIKE THAT WHERETHEY CAN IN FACT ISSUE AN EMERGENCY COUPLE OF DAYS , BUT I DO SAY WHILE IT DEPENDS ON THE FACTS, IF THEY THINK IT IS GOING TO BE LETHAL , THEN I DO THINK THAT U NDER THE CI RCUMSTANCES THEY HAVE TO LL USE THEIR PROFESSIONAL JUDGMENT OF REASON ABLE CARE TO SAY THAT I THINK IF I FILL THIS IT