Over the counter

By Cara Guthrie, Outer Temple Chambers

Introduction

When you take a prescription to a pharmacist he is not just there to dispense.  The pharmacist is professionally required also to consider whether the medication is suitable.  In Horton v Evans & Lloyds Pharmacy Limited, CA, 20/11/2006, the Court of Appeal held that a failure not to consider this could amount to negligence.

Facts

The claimant claimed damages from both a general practitioner (Evans) and the pharmacist (Lloyds) for the deterioration to her health, and the resulting disruption to her life, after she had been misprescribed some medication for a minor ailment.  The claim against Evans had been settled as had the contribution proceedings, leaving only the claim against the pharmacist.  The background facts were that for many years the claimant had taken one 0.5mg tablet of dexamethasone a day.  Her general practitioner had provided her with a previous prescription for the correct dosage, but on the particular occasion in question he prescribed for 28 4mg tablets and didn’t specify the dosage.  Both the previous prescription and the one under examination had been dispensed by the same pharmacist at Lloyds.  In fact Lloyds had dispensed dexamethasone to the claimant on seven previous occasions according to their computers.  On the present occasion, the pharmacist did notice that the strength of the tablets was greater than in the past and looked up the medication but because he found that it was within the usual therapeutic range for a daily dose, he did not question the prescription with either the claimant or the GP.

As dexamethasone was not available in this country at the time in 4mg tablets, the pharmacist dispensed double the quantity of tablets prescribed at 2mg.  Unfortunately, the claimant then went to on holiday to the US where she asked a doctor for a repeat prescription and he gave her one for 90 4mg tablets.  Eventually her health broke down due to the overdose. 

Breach of duty

The claimant argued that the pharmacist should have noticed that the tablets were eight times the strength of those previously dispensed by Lloyds on seven previous occasions and that it at least should have occurred to him that there may have been a mistake. The claimant pointed in particular to the fact that a pharmacist was required by the Royal Pharmaceutical Society of Great Britain's Code of Medicines, Ethics and Practice to consider whether the medication being prescribed was suitable for the patient; a requirement also contained in Lloyds’ branch procedures manual.   

The Court of Appeal agreed with the claimant’s arguments.  The pharmacist should have asked whether the prescription really represented what the GP had intended to prescribe or whether it was a mistake.  In fact, the branch procedures manual covered that exact situation.  In failing to follow this procedure and question the correctness of the prescription with either the claimant or the GP, the pharmacist fell below the standards that could reasonably have been expected of a reasonably careful and competent pharmacist (applying Dwyer v Roderick, Times, November 12, 1983). 

Causation

Lloyds also argued that the US doctor was negligent and that this broke the chain of causation.  The Court of Appeal held that the Lloyds had not established that the US doctor was negligent.  He was entitled to rely on the claimant’s assurance that she had been on the same dose for many years.  He had looked on the label and noticed the label on the most recent bottle and had reasoned that the claimant was taking two 2mg tablets a day.  Further, the claimant had told him that the bottle represented four weeks' supply.  That was  sufficient investigation on his part.  The deterioration in the claimant’s health was a result of the claimant taking the 4mg tablets prescribed by the US doctor.  However, it was the pharmacist’s breach of duty that caused the US doctor to make the prescription, so that the US doctor’s acts did not constitute independent events and causation was proved.  Further, the loss was not too remote as it was reasonable to expect that a reasonably careful and competent pharmacist would have foreseen that the label on the bottle might be used by a physician other than Evans to identify what Evans’ prescription had been for (applying Rahman v Arearose Ltd (2001) QB 351).

Conclusion

This case is an important reminder as to the duties owed by pharmacists and other professionals involved in the dispensing of medicines and serves as a warning.  It also highlights the difficulties which defendants can have in proving a break in the chain of causation.