Arkansas High Court: Pharmacy Not Liable for Prescription Drug Mix

February 17, 2011

The Arkansas Supreme Court has upheld a lower court ruling that a pharmacist has no duty to warn a customer about a dangerous mix of prescription medicines or to inquire about physicians who prescribe them, in a case that involved a doctor later convicted of attempted murder in a separate matter.

Kevin Allen Curry was found dead in his home in Dardanelle, Arkansas on Aug. 24, 2005, according to court records. Following an autopsy, his cause of death was ruled “mixed drug intoxication” combined with alcohol.

The administrator of his estate had sued the pharmacy that dispensed the drugs, and then appealed the lower court’s decision that the dispensing pharmacy, Rose Drugs of Dardanelle Inc., “had no general duty to warn, to not fill dangerous prescriptions, and to inquire of a prescribing physician.”

Four days prior to his death, Curry saw Dr. Randeep Mann for generalized facial pain resulting from a blast to the face. Dr. Mann prescribed Curry multiple medications, including Norflex, Zoloft, Valium, Oxycontin, Percocet, Lorazepam, Methadone, Propoxyphene, and Doxepin. At the time that Curry saw Dr. Mann, he was already taking Percocet, Valium, Ambien, Trazodone, Norflex, Zoloft, Effexor, and Oxycontin.

Curry had the prescriptions written by Dr. Mann filled at Rose Drug, a pharmacy owned by Appellee Rose Drugs, on August 22, 2005.

Curry’s estate had filed wrongful death actions against both the prescribing doctor and Rose Drugs.

The suit asserted that Dr. Mann – who subsequently was convicted by a federal jury for attempting to kill the chairman of the state medical board that sanctioned him repeatedly for over-prescribing pain medication – failed to properly treat Curry and was negligent in “negligent prescribing of numerous medications without regard to the ramifications of those multiple prescription medications.”

The complaint said Rose Drugs had failed to “properly monitor” and was negligent in filling “numerous medications without regard to the ramifications of the multiple prescriptions.”

Dr. Mann was not a party in the current appeal but the court noted that he admitted only to prescribing Norflex, Valium, Percocet, and Methadone for Curry.

In its answer to the complaint, Rose Drugs did not specify “which drugs it filled,” the court explained. But attached as exhibits to a brief in support of a motion for summary judgment were pharmacy records showing that Curry had prescriptions filled for Oxycodone, Methadone, Diazepam, Trazodone, Norflex, and Lunesta.

Relying on a previous decision Kohl v. American Home Products Corp., 78 F. Supp. 2d 885, 893 (W.D. Ark. 1999), Rose Drugs argued that under Arkansas law, its responsibilities “did not include the duty to warn Mr. Curry regarding the risks associated with the prescription medications he purchased or the duty to decline to dispense the medications prescribed by Dr. Mann.”

In Kohl, the Arkansas federal district court had held that “pharmacies generally have no common-law or statutory duty to warn customers of the risks associated with the prescription drugs they purchase.”

The circuit court relied on the Kohl decision in dismissing the case against Rose Drug. Under Kohl, the circuit court noted, Rose Drugs had “no duty other than to fill the prescription as prescribed and properly label it.”

A majority of the Arkansas Supreme Court backed the decision in the appeal in which Associate Justice Donald L. Corbin wrote: “We cannot say that Rose Drugs had a general duty to warn, to refuse to fill the prescriptions, or to inquire of Dr. Mann. The duty to warn of the medications’ dangers was with Dr. Mann, who prescribed the drugs. We therefore affirm the circuit court’s order granting summary judgment in favor of Rose Drugs.”

Justices Hannah and Brown dissented.

The case is: Virginia Kowalski, Individually, and as Special Administratrix of the Estate of Kevin Allen Curry, Deceased, and on Behalf of the Statutory Beneficiaries of the Estate of Kevin Allen Curry, Appellant, Vs. Rose Drugs of Dardanelle Inc. and Randeep Mann, M.D., Appellees. No.10-459

Dr. Mann

In a separate, federal court action, Dr. Mann, who had been repeatedly disciplined by the Arkansas Medical Board for over-prescribing painkillers, was convicted in August 2010 of masterminding a bomb attack that nearly killed Dr. Trent Pierce, then chairman of the medical board. Mann is scheduled to be sentenced in that case in late February but has applied for a postponement.

Dr. Pierce was disfigured and partially blinded in the February 2009 attack.

The federal jury also convicted Dr. Mann of illegal possession of 98 unregistered grenades and a machine gun.

Topics Drugs Arkansas

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