Published on:

Georgia Court Determines Pharmacy Error Plaintiff’s Evidence Insufficient to Establish Medical Malpractice Claim

Earlier this month, an appellate court issued a written opinion in a Georgia pharmacy error case, affirming the dismissal of a plaintiff’s medical malpractice claim due to insufficient evidence that the pharmacy violated a professional duty of care. The court based its decision on the distinction between affirmative evidence that would have shown that the pharmacist did not offer counseling to the plaintiff’s wife versus a total lack of evidence on the issue. Finding a lack of evidence was insufficient to establish a medical malpractice claim, the court dismissed the plaintiff’s claim.

The Facts of the Case

The plaintiff was prescribed medication by his physician, and the prescription was called in to the defendant pharmacy. The plaintiff’s wife went to pick up the prescription, and she was given a single bag with two bottles inside. Unbeknownst to her at the time, neither bottle bore her husband’s name, and both contained unprescribed medication.

The plaintiff took the medication later that day, again without noticing that they were the wrong prescriptions. Later that evening, the plaintiff’s wife found the plaintiff passed out on the floor of their home. It was later discovered that the medication he previously took was given to his wife in error.

The plaintiff and his wife filed a personal injury case against the pharmacist, making both a medical malpractice claim as well as a claim under the traditional theory of negligence. In support of their claims, the plaintiff presented a pharmacist as an expert witness. The pharmacist testified that patients should be offered medication counseling at the time a prescription is picked up, and part of the reason this is required is to prevent the patient from being sent home with the wrong prescription. The pharmacist also testified that, ultimately, regardless of whether counseling was offered, the pharmacy violated the standard of care owed to the plaintiff because it allowed the error to occur and that the pharmacist on duty is responsible for all prescriptions once they leave the pharmacy.

The pharmacy filed a motion to dismiss, arguing that there was insufficient evidence showing that it violated the standard of care. Specifically, the pharmacy argued that there was no evidence that a pharmacy employee did not offer counseling to the plaintiff’s wife when she picked up the medication.

The court agreed, noting that it was the plaintiff’s burden to present evidence of negligence, and a mere absence of evidence suggesting counseling was provided is not the same thing as affirmative evidence suggesting that it wasn’t provided. The court then dismissed the plaintiff’s medical malpractice claim. However, the court did allow the plaintiff’s negligence claim to proceed.

Have You Been Injured by a Georgia Prescription Error?

If you or a loved one has recently been a victim of a pharmacist’s negligence, you may be entitled to monetary compensation through a Georgia medical malpractice lawsuit. The dedicated Georgia personal injury and wrongful death attorneys at McAleer Law have decades of collective experience handling all types of Georgia personal injury cases, including pharmacy error claims. Call 404-622-5337 to schedule a free consultation with an attorney today.

See More Posts:

Court Excludes Key Witness at Trial Due to Plaintiff’s Failure to Identify Witness Before Trial, Georgia Injury Attorney Blog, September 27, 2017.

Georgia Court Discusses the Doctrine of Intervening Cause in Recent Personal Injury Case, Georgia Injury Attorney Blog, December 19, 2017.