Oleckna, the Fifth District reversed the dismissal with prejudice of a plaintiff's
negligence claim against the defendant phamacy and pharmacist, finding
the pharmacy and pharmacist owed an actionable duty to the deceased, Steven
Porter, whose personal representative brought suit. In May 2009, Porter's
was diagnosed with stress syndrome and prescribed various medications.
The complaint alleged that over the following two years, Porter's
doctor repeatedly prescribed those drugs before Porter should have depleted
the preceding prescriptions. The plaintiff alleged that the pharmacy filled
the prescriptions without question, even though the prescriptions were
issued too closely in time and days before Porter should have exhausted
the preceding prescription. In March 2011, Porter died due to combined
drug intoxication. The trial court dismissed the plaintiff's claims
against the pharmacy and pharmacist finding that those defendants owed
no duty to Porter other than to properly fill his valid and lawful prescriptions.
The trial court's order noted a purported conflict among the Districts,
and found a prior Fifth District opinion to govern. On this appeal, the
Fifth District disagreed.
The Fifth District noted that the pharmacy owes a customer a duty of reasonable
care. Pharmacists are required to exercise that degree of care that an
ordinary prudent pharmacist would under the same or similar circumstances.
The Fifth District found that the cases upon which the trial court relied
were not controlling. The Florida Supreme Court's decision in
McLeod v. W.S. Merrell, Co., addressed a breach of warranty claim and the issue was whether a pharmacy
could be held strictly liable for its failure to warn a customer of the
possible dangers of using the drug it dispensed in accordance with a doctor's
McLeod court did not address a complaint grounded in negligence. The Fifth District
similarly rejected the trial court's reliance on
Estate of Edna Marie Sharp v. Omnicare, Inc., in which the issue was whether the plaintiff sufficiently pled a negligence
claim against an entity providing pharmacy consulting services to a nursing
home. The Fifth District in that case held that the consulting entity
could not be held liable for duties that are ordinarily owed by a caretaker
of the patient or the physician who has the duty to know the drug that
he is prescribing and to properly monitor the patient.
The Fifth District ruled that controlling case, which did not conflict with
Estate of Sharp, is the First District's ruling in
Dee v. Wal-Mart Stores, Inc., and the Fourth District's ruling in
Powers v. Thobani. The First District held that a pharmacy must use due and proper care
in filling a prescription, and that a pharmacy that fills a prescription
that is unreasonable on its face may breach its duty of care, even if
the prescription is lawful as written. The Fourth District relied upon
McLeod, ruling that the repeated filling of dangerous and frequently abused medications,
without warning of their risks, might constitute a failure to use due
and proper care. The Fifth District agreed, and found that a pharmacist's
duty to use due and proper care in filling prescriptions extends beyond
simply following the prescribing physician's directions. Accordingly,
the Fifth District reversed.