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No Duty to Third Parties Injured by Customer Who Was Given Incorrect Prescription
November/December 2019Martinez v. Walgreen Co., 2019 WL 3851733 (5th Cir. Aug. 16, 2019).
The Fifth Circuit Court of Appeals held that under Texas law, a pharmacy that dispenses an incorrect prescription to a customer is not liable to third parties subsequently injured by the customer.
Here, a Walgreens pharmacy gave Elias Gamboa Mesa another customer’s prescription. After ingesting the medication—glyburide metformin—Gamboa suffered extreme hypoglycemia and was involved in several motor vehicle collisions. He died from injuries sustained in the collisions, and an autopsy revealed there was glyburide metformin in his system at the time of death.
Third parties Olivia and Rogelio Longoria, who were rear-ended by Gamboa, and the next of kin of Claudia Martinez, who also died in one of the collisions, sued Walgreens, alleging liability for negligently dispensing the wrong prescription to Gamboa. The defense moved for summary judgment. The trial court granted the motion, making an Erie guess and holding that under Texas law, a pharmacist owes no legal duty to third parties such as the plaintiffs.
Affirming, the Fifth Circuit noted that the Texas Supreme Court has held that generally, there is no relationship between a doctor and patient that would provide the amount of control necessary to warrant creation of a legal duty from the doctor to third persons. In deciding whether the state high court would impose a duty between pharmacies and third parties, the court here considered several factors, including the foreseeability of harm, the presence of other protections, and the danger of interfering with legislative balancing of various public policies. The court concluded that harm to third parties such as the plaintiffs was not a foreseeable consequence of Walgreen’s alleged misconduct in misfilling Gamboa’s prescription. It is not reasonably foreseeable that a pharmacy customer would take medication from a bottle labeled with someone else’s name and the name of an unprescribed medication, the court said, noting that any risk of harm to third parties resulting from such facts is attenuated.
The court also found that there is extensive regulation of pharmacies’ dispensing of prescription drugs, and the legislature has created protections against associated risks of harm, including mandating extensive labeling, imposing criminal liability on pharmacists who failed to comply with legislative requirements, and imposing civil penalties on those engaging in an unlawful pharmacy practice. These requirements were intended not to prevent the type of harm that the plaintiffs experienced, but to protect members of the public from harm resulting from the ingestion of prescription drugs, the court concluded.
Consequently, the court concluded that the Texas Supreme Court would not recognize a duty between a pharmacy and third parties injured after a customer took an incorrect prescription.