The wrong side of the law

Why was a pharmacy accused of ‘spoliation of evidence’? Can pharmacies cite religion as a reason for not dispensing medicines?  Part 2 of a look at recent US pharmacy cases

The legal risks potentially faced by pharmacists have beenpharmacy, la highlighted at a recent US pharmacy conference, as reported by Pharmacy Times.

Speaking on pharmacy case law at the American Pharmacists Association (APhA) 2016 Annual Meeting and Exposition, pharmacy legal experts outlined some important cases they said all US pharmacists needed to know.

Burton v. Walgreens

This case involved “spoliation of evidence,” meaning a party involved either intentionally or unintentionally destroyed evidence.

In this case, a patient sought sanctions against a pharmacy for willful spoliation of evidence after a Walgreens pharmacy threw out a bottle and pills that were returned after a misfill.

The issues in this case were whether Walgreens had a duty to preserve evidence and whether the misfill served as a notice of potential litigation.

A Walgreens customer was supposed to receive Diovan, but the pharmacist misfilled the prescription with a mix of Diovan and lithium. The patient’s wife returned the pills to the pharmacy after noticing that the pills were shaped differently than usual.

Meanwhile, the patient experienced numbness and weakness in his hand and was hospitalized. He was diagnosed with carpal tunnel syndrome and polyneuropathy due to improper ingestion of lithium.

The patient sued Walgreens for alleged negligence and asked Walgreens for the pills and bottle to confirm that the pills contained lithium. However, Walgreens noted that they were thrown away, and the plaintiff filed a motion for spoliation sanctions.

The court determined that Walgreens did not have a duty to preserve the evidence because the evidence was destroyed in accordance with internal policies, and it was not willfully destroyed. In addition, the court found Walgreens was on notice of potential litigation because of the error, which should have triggered the staff to preserve evidence.

However, since Walgreens admitted to misfilling the prescription, the plaintiff “faced no prejudice from spoliation.”

Stormans Inc. v. Wiesman

A pharmacy and pharmacists brought action against Washington State’s Pharmacy Quality Assurance Commission because of rules requiring a pharmacy to dispense certain drugs.

The owners of Stormans Inc did not want to stock emergency contraception like Plan B because of religious reasons. When patients came in for these products, the staff would direct them to neighboring pharmacies.

After several courts went back and forth on whether this was allowed, a federal appeals court determined in 2015 that the state’s pharmacists could not use religion as a reason to not sell emergency contraception.

“Speed is particularly important considering the time-sensitive nature of emergency contraception and of many other medications,” wrote Judge Susan Graber who authored the panel’s opinion. “The time taken to travel to another pharmacy, especially in rural areas where pharmacies are sparse, may reduce the efficacy of those drugs.”

The pharmacies involved in this case are still fighting this ruling. A law firm called Alliance Defending Freedom has filed a petition for a writ of certiorari in order to have the Supreme Court review the federal appeals court’s decision.

Click here for part one of this story.

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