In Florida, nursing homes are required to hire consultant pharmacists to review nursing home resident’s medications on a monthly basis. The reviews include a determination of whether the medication ordered was given, whether the medication ordered is appropriate, and whether the medication given should not be taken with other medications. When the nursing homes are sued for abuse or neglect and the issue involves a medication error, the facility often claims that they are not responsible because they have hired a pharmacist as required by law and relied on the pharmacist’s advice. In the Estate of Johnson v. Badger, 983 So.2d 1175 (Fla. 2nd DCA 2008) Florida's Second District Court of Appeals held that when a nursing home resident is injured as a result of negligent advice given by a nursing home consultant pharmacist to a nursing home or treating physician the resident cannot sue the pharmacist.
In Badger, the nursing home nurses were giving Mrs. Johnson medication prescribed by her nursing home physician. The nursing home had a contract with a consultant pharmacist to review the resident’s drug regimen records, review of the residents medication records, provide training and oversight, and create pharmacy policy and procedures. No advice was given by the consulting pharmacist directly to the resident and the consulting pharmacist had no authority to make changes to the resident’s pharmacy regimen. Both state law and the contract limited the consulting pharmacist to giving advice only to the nursing home and the residents treating physician. As a result, the court decided the consulting pharmacist had no legal duty to the resident. Therefore, the court concluded the consultant pharmacist could not be held responsible for any personal injury damages caused by a failure to comply with the state or contractual obligations.
The Badger case limits the number of potential defendants when a medication error occurs in a Florida nursing home. However, nursing home abuse lawyers should not be allow nursing homes to to use it as a shield to insulate them from liability or even assign liability to the consultant pharmacist as an empty chair at trial. Nursing homes in Florida have a non delegable duty to provide appropriate care to their residents. See NME Props. Inc. v. Rudich, 840 So.2d 309 (Fla. 4th DCA 2003)( holding that when a nursing home is required by law to do a task, it can contract out doing the task but the contract does not illuminate the ultimate responsibility for a negative outcome).