Written by attorney James E. Girards

Texas Pharmacy Malpractice Issues

In Texas, a pharmacist is defined as a Chapter 74 (CPRC) health care provider. The deadline for bringing suit against a pharmacist is two years from the date of the negligence. A notice letter should be sent at least 60 days before suit is filed. When a notice letter is sent prior to the 2-year deadline an additional 75 days is added to the original 2-year statute of limitation.

Pharmacists are licensed through the Texas Board of Pharmacy: Disciplinary history related to a licensed pharmacist is available under certain circumstances. [Tex.Rev.Civ.Stat.Ann. art. 4542a-1 § 27A(d)(3); Op.Atty.Gen. 1988, No. ORD-493].

A pharmacist must not dispense the wrong drug; dispense the wrong dose; or provide incorrect instructions. The pharmacist must properly counsel the patient in the use of the drug, and must provide information that in his judgment is significant, name and description of the drug, dosage, route and duration of administration, special considerations and precautions, common severe side effects, proper storage, refill information, and action to be taken if a dose is missed. [Texas Pharmacy Rules, 22 TAC § 291.33(c)]. Also prohibited are the following acts: dispensing a combination of drugs that will adversely interact; dispensing a prescription drug despite an allergy history to that drug; failure to question over-prescription or inappropriate use of prescription drugs; and failure to properly label the medication incuding name, address, and phone number of the pharmacy, drug name, unique identification number of the prescription, date dispensed, name or initials of the pharmacist, name of prescriber, name of the patient, instructions for use, quantity dispensed, storage information, and cautionary statements. [Id. § 291.33(c)(4)].

The Texas Pharmacy Manual is very explicit about the duties of a pharmacy and its personnel. Only the pharmacist may receive a telephone prescription. The pharmacist must check the prescription for proper drug, dosage, and instructions. If there is any question about the accuracy of a prescription, the pharmacist must call the prescriber to clarify the prescription. The pharmacist must perform a Drug Regimen Review at the time the prescription is filled.

A drug regimen review is a process in which the pharmacist at the time a prescription is filled must review the patient’s drug history in order to detect dangers posed by filling the prescription at hand. It includes evaluation of prescription drug orders and patient medication records to detect known allergies, rational therapy-contraindications, reasonable dose and route of administration, and reasonable directions for use. The pharmacist must also look for duplication of therapy. Such review must at a minimum identify: inappropriate drug use, therapeutic duplication, drug-disease contra-indication, drug-drug interaction, incorrect drug dosage or duration of drug treatment, drug-allergy interactions, and clinical abuse/misuse. [Tex.Rev.Civ.Stat. Ann. art. 4542a-1].

The Pharmacist must also take steps to resolve any potential dangers revealed in the drug regimen review, including speaking directly with the prescriber if necessary. [Texas Pharmacy Rules, 22 TAC § 291.33]. The pharmacist is solely responsible for the direct supervision of supportive personnel and may only delegate non-judgmental technical duties associated with filling a prescription. The pharmacist remains responsible for any delegated act. The pharmacist must properly counsel the patient. The pharmacist must check and re-check the prescription at each step of the prescription filling process. If there is any question as to the appropriateness or accuracy of the prescription, the drug order must be verified with the prescriber before dispensing. [Texas Pharmacy Rules, 22 TAC § 291.34(b)].

In Texas, Pharmacists are subject to a high standard of care in dispensing drugs to their customers. [Burke v. Bean, 363 S.W.2d 366, 368 (Tex.Civ.App.—Beaumont 1962, no writ); Dunlap v. Oak Cliff Pharmacy Co., 288 S.W. 2d 236, 237 (Tex.Civ.App.—Austin 1926, writ ref’d); Peavy v. Hardin, 288 S.W.2d 588, 589 (Tex.Civ.App.—El Paso 1926, no writ); Speer v. United States, 512 F.Supp. 670, 679 (N.D.Tex. 1981); Knoefel v. Atkins, 81 N.E. 600, 603 (Ind.1907); Fuhs v. Barber, 36 P.2d 962, 963 (Kan. 1934); French Drug Co. v. Jones, 367 So.2d 431, 434 (Miss.1978)]. A high standard of care is one that would be exercised by a very prudent and cautious person under the same of similar circumstances in that business. [Peavy, 288 S.W. at 589]. The rationale for holding pharmacists to this high standard of care is that a great risk is involved in the dispensing of drugs to customers who are depending on the expertise of those holding themselves out as learned professionals.

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