§47.17 Duty of Pharmacist

The Case: Dooley v. Everett , 805 S.W.2d 380 (Tenn. Ct. App. 1990).

The Basic Facts: A young boy was prescribed two drugs which interacted with one another and resulted in brain damage. A lawsuit was filed against the physician who ordered the two drugs and against the pharmacy which filled the prescriptions.

The Bottom Line:

• "Legal duty means that which the law requires to be done or forborne to a determinate person or to the public at large and a correlative to a right vested in such person or the public at large. Dabbs v. Tennessee Valley Auth., [250 S.W.2d 67 (Tenn. 1952)]. A duty rests on everyone to use due care under the attendant circumstances, and negligence is doing what a reasonable and prudent person would not do under the given circumstances. Dixon v. Lobenstein, [132 S.W.2d 215 (Tenn. 1939)]." 805 S.W.2d at 384.
• "Duty in the context of a case where negligence is alleged raises the question of whether the defendant is under any obligation required by law for the benefit of the particular plaintiff. [57A Am. Jur. 2d Negligence §§ 84, 85 (1989)]. Standard of care refers to what a defendant 'must do, or must not do…to satisfy the duty.' Id. at § 85." Id.
• "Generally Revco owes its customer a duty to use due care under attendant circumstances. That is, Revco owes a duty to its customer to refrain from negligently doing or failing to do an act which would injure its customer. The pharmacist has a duty to act with due, ordinary, care and diligence in compounding and selling drugs. Batiste v. American Home Products Corp., [231 S.E.2d 269, 273-274 (N.C. Ct. App. 1977)]." Id.
• "Whether there is a duty owed by one person to another is a question of law to be decided by the court. However, once a duty is established, the scope of the duty or the standard of care is a question of fact to be decided by the trier of fact." Id.
• "Our Supreme Court, in Wood v. Clapp, 36 Tenn (4 Sneed) 65 (1856), a case in which a surgeon was sued for alleged malpractice, stated in part as follows:

  [A]ny one who assumes to be qualified for the exercise of any profession, art, or vocation, is responsible for any damage which may result to those who employ him from the want of the necessary and proper knowledge, skill, and science which such profession demands. A man who enters upon the legal profession and solicits business, is required to have such an amount of legal learning as will enable him to discharge with reasonable skill and ability the duties incumbent upon him in his profession. If, from the want of such knowledge and skill, or a proper degree of industry, diligence, and attention to the business entrusted to him, his client sustains injury, he is responsible in damages. The same rule applies to a physician. He impliedly contracts with those who employ him that he has such skill, science, and information as will enable him properly and judiciously to perform the duties of his calling. If he should be deficient in these respects, he has violated his contract, and must account, in damages, for any malpractice by which those employ him sustain injury. This is the general rule applicable to all professions and avocations in which men are employed to act for others in any particular department of business requiring skill, art, or science. The law does not, however, require the highest degree of skill and science, but only such reasonable degree as will enable the person safely and discreetly to discharge the duties assumed. The failure of a course of treatment is not by any means conclusive of that want of professional skill by the practitioner; such a rule would be harsh and unreasonable in application to any art or profession, and endanger the most faithful and best-informed.

  Id. at 66-67 (emphasis in original)." Id.
• "Professionals are judged according to the standard of care required by their profession. In Delmar Vineyards v. Timmons, [486 S.W.2d 914, 920 (Tenn. Ct. App. 1972)], the Court stated: 'The standard of care applicable to the conduct of audits by public accountants is the same as that applied to doctors, lawyers, architects, engineers, and others furnishing skilled services for compensation and that standard requires reasonable care and competence therein.' See Cleckner v. Dale, [719 S.W.2d 535 (Tenn. Ct. App. 1986)] (Attorney must exercise the degree of care and diligence which is commonly possessed and exercised by attorneys practicing in the same jurisdiction.); Truan v. Smith, 578 S.W.2d 73 (Tenn. 1979) (Physicians must exercise reasonable and ordinary care commensurate with his skill and knowledge.).
  
  [RESTATEMENT (SECOND) OF TORTS, § 229A (1965)] provides:

  Unless he represents that he has a greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.

  We do not think it is subject to question that the practice of pharmacy is a profession. The Pharmacy Practice Act, in pertinent part, provides as follows:

  (d) The practice of pharmacy in this state is declared a professional practice affecting the public health, safety and welfare and is subject to regulation and control in the public interest and concern that the practice of pharmacy, as defined in this chapter, merit and receive the confidence of the public and that only qualified persons be permitted to practice pharmacy in this state.
  
  (e) As used in this chapter:
  
  (6) 'Practice of pharmacy' means the practice of that profession concerned with the art and science of preparing, compounding and dispensing of drugs and devices, whether dispensed on the prescription of a medical practitioner or legally dispensed or sold directly to the ultimate consumer, and includes the proper and safe storage and distribution of drugs, the maintenance of proper records therefore, and the responsibility of relating information as required concerning such drugs and medicines and their therapeutic values and uses in the treatment and prevention of disease. The "practice of pharmacy" does not include the operations of a manufacturer or wholesaler if properly licensed as such….

  Tenn. Code Ann. § 63-10-101(d) and (e)(6)." Id. at 384-85.
• "The pharmacist is a professional who has a duty to his customer to exercise the standard of care required by the pharmacy profession in the same or similar communities as the community in which he practices his profession." Id. at 385.
• "There is a disputed issue of fact in the record regarding whether the duty of care to discover and warn customers of potential drug interactions is included within the general scope of the duties a Tennessee pharmacist owes to its customers." Id.

Other Sources of Note: Pittman v. Upjohn , 890 S.W.2d 425 (Tenn. 1994) (Dooley affirmed, but pharmacist did not breach duty under the facts).

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