Following a protracted discovery period that included laboriously long depositions, the defense team, including Dr. P and the insurance adjuster, convened to decide their next move. The adjuster argued that “the claimant [patient] had a rare but dramatic complication of the medication and alleged that no one warned him of this problem. Now he maintains he is impotent. A jury in this area is going to give him something, even though it might be based only in sympathy for his present state.” The defense lawyer concurred. After a week of back-and-forth discussions with the plaintiff attorney, Dr. P agreed to settle the case for $500,000.

The pharmacist wouldn’t settle, however, and her trial began one month later. The patient admitted that he “never read those papers they put in with the medicine.” He said that the pharmacist should have warned him of the risk verbally. In the end, the jury awarded the patient $357,000 but assigned 49% of the fault to him for not reading the warnings that came with the trazodone. The pharmacist’s lawyer took the case to the regional appeals court, arguing that the physician was the appropriate person to warn the patient of side effects. He told the court that the pharmacist should not be required to “do the practitioner’s job for him.” The appeals court held that while it was normally the clinician’s duty to explain the proper use and dosage of medication to the patient and to warn of potential side effects, by taking it upon herself to do so, the pharmacist had assumed the duty. The judgment of the trial court was allowed to stand.

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Legal background

Generally, state courts have held that pharmacists have no duty to warn patients of a medication’s side effects and complications. Perhaps surprisingly, drug companies do not have this duty either. This conclusion is based on the “learned intermediary”doctrine in which a clinician is assumed to be in a better position to explain the risks and benefits of medication. In this case, the appeals court ruled that the pharmacist had a “duty to warn” because she provided partial information. While silence is golden from a malpractice risk-management standpoint, most drugstore chains have decided that pharmacists should be involved in patient education to enhance customer loyalty.

The plaintiff lawyer in this case accepted Dr. P’s settlement offer but took the pharmacist to trial and won, essentially collecting twice for the same case. In most situations, settlement with other defendants does not affect the amount awarded at trial, nor is the jury informed that the plaintiff has already settled the case with other parties. This provides an impetus for the plaintiff lawyer to include as many different defendants as possible in the suit.

The plaintiff lawyer took home 40% of the total settlement. This percentage varies, depending on the attorney and the nature of the case. If the case is “hot,” such as a brain-damaged baby, the attorney may agree to accept the lower end of the range. Difficult cases or those involving a trial or an appeal can command up to 50%.

Risk-management principles

Warning patients of the risks and benefits of medication is a difficult area of risk management. Such a discussion not only takes a great deal of time, it may also affect the confidence with which the patient takes the prescribed drug. Many clinicians mention the most common side effects and ask the patient to call if there are any problems. Though incomplete, this seems to work and represents one of the many compromises that providers are forced to make in today’s hectic clinical atmosphere. Juries have been generally supportive of clinicians in this respect and do not require them to explain every minor or uncommon side effect. This case is the exception.