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Karan Oleckna v. Daytona Discount Pharmacy, et al., Case No. 5D13-3057 (5th DCA)

In 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 prescription. The 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 McLeod or 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 Dee and 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.

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