Corresponding Responsibility

Dr Jones wrote a prescription for Vicodin ES 7.5/750, #50, 1 to 2 tabs every 3 to 4 hours PRN post-op pain, with a refill.  Pharmacist Smith fills the prescription as is and when the patient returns for the refill 5 days later fills and dispenses.  The patient sued the pharmacy and physician 3 months later when she discovered that she had suffered irreversible liver damage.

The pharmacist filed for a dismissal of the charges against him, claiming his duty was to fill as ordered and to offer counseling, which was refused.  The court, under the doctrine of corresponding responsibility, denied the motion for dismissal.  Both doctor and pharmacist were held liable.

The above example is corresponding responsibility as most of us know it, that when a presciber writes a prescription that is inherently dangerous to that patient, the pharmacist has a duty to step in and act to minimize or eliminate that danger.  Failure to do so results in equivalent liability—corresponding responsibility—for the pharmacist.

The Kentucky Board of Pharmacy has wisely been pushing the Commonwealth’s pharmacists to acquaint themselves with this concept for some time.  Up to recent times, pharmacist’s liability for filling a prescription as is has led to little or no liability.  In the past, if a doctor was sued for $100K, the pharmacist might be sued for a tenth of that.  No longer.  In the late 1970s, in both the McLaughlin v Hooks-Superx and American Home Products cases, courts held that pharmacist were professionals capable of more than “type, count and pour.”  Thus was born the duty to act as a safeguard for patients against dangerous prescriptions.  This duty has grown and expanded, as the profession has done the same.  Now, with pharmacists on the threshold of primary provider status, corresponding responsibility is at the forefront, indicating and reminding pharmacists that with increased responsibility comes a concomitant liability when things go awry.

In the most recent issue of Drug Topics, the article on corresponding responsibility focused solely on negligence.  This is how most pharmacists are introduced to this topic.  However, the original intent by the federal government was for pharmacists to share responsibility where forged or altered prescriptions were presented.  Early on, the feds sought to employ corresponding responsibility yin the war on drugs.  Now, hard evidence exists that both boards of pharmacy and courts are expanding the federal definition to related areas where liability may ensue.

Dr X runs a pain treatment facility and writes approximately 500 prescriptions a day, the average for each patient being 2 to 3 prescriptions.  Almost all of the patients go right next door to Creepy Drugs to get the prescriptions filled.  The pharmacist owner takes steps to stay inside the law: he regularly checks to see if Dr X is under investigation, whether the doctor’s DEA number is still valid, and requires a diagnosis on all prescriptions.  After almost two years of this, the Board came in, closed the pharmacy and revoked the pharmacist’s license.

Creepy Pharmacist defended himself aggressively, reminding the Board of his actions to determine the prescriptions were legitimate.  The Board demurred to accept this defense, stating that Creepy Pharmacist had to know that with an average of 2 to 3 Rxs per patient, Dr X had to be seeing between 175 to 250 patients a day.  This is impossible, the Board held.  Most docs see between 25-35 patients a day.  Dr X could not speak to, perform an exam, review charts, etc for this high number; he had to be writing Rxs without even seeing the patients.  Creepy Pharmacist should have known this.  Creepy Pharmacist appealed and the Board was upheld.

The above case shows us a couple of things.  First, as discussed before, corresponding responsibility for the physician’s illegal acts was expanded to include filling prescriptions which could not have been the result of proper medical practice; thus the prescriptions could not have been issued for a legitimate medical purpose.  Second, corresponding responsibility is not going to attach to pharmacists merely for wrong or bad acts they see, but also those that they should have been able to see.  Above, Creepy Pharmacist, merely from his prescription volume, should have been able to determine the prescriptions were not legitimate.

Corresponding responsibility demands action by the participating pharmacist.  In the first scenario above, pharmacist should have contacted the prescriber and suggested an analgesic with a much lower acetaminophen level.  If the doctor demanded the Vicodin ES, the pharmacist had two choices: 1) change the sig to read “1 to 2 tabs every 3 to 4 hours as needed for pain.  NO more than 5 tabs in a 24 hour period” or 2) refuse to fill the prescription. Ultimately, in order to avoid liability, the involved pharmacist must either eliminate the danger of the prescription or, at the least, make the danger significantly less than as written.  And, of course (as you have heard a thousand times before), document everything.

Corresponding responsibility also exists where the prescription has other illegal aspects to it.  My most common example here is a prescription written for an anorexiant where the patient does not meet either the legal or manufacturer’s BMI requirements.  I always advise getting the BMI before filling unless the patient’s appearance (size) removes doubt that the required BMI exists.  If the patient does not meet the requirements and suffers injury from the drug, pharmacist shares liability for failing to obtain the BMI prior to filling.  (For those of you about to argue that the Board makes obtaining the BMI optional, keep this in mind: the Board did not state that you shouldn’t get a BMI nor did it provide you protection from liability either from the Board or the patient if you fill a prescription where the BMI requirements are not met.)

As the profession of pharmacy expands and grows, so does responsibility and liability.  Corresponding responsibility provides as much liability to pharmacist as it does to prescriber.  Pharmacists should embrace the new duties but also be well prepared for when things go wrong. CYA well or keep my phone number handy.

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