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Appeals court reverses summary judgment for pharmacist, CVS

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The Indiana Court of Appeals concluded that a pharmacist working in a Hendricks County CVS had a duty of care to a customer to either warn her of the side effects of a drug or withhold the medication. As a result, the judges reversed summary judgment in favor of the drug store and pharmacist in a negligence suit.

Christine Kolozsvari had a prescription filled for OsmoPrep to prepare her for an upcoming colonoscopy. She had the prescription filled at the CVS where she filled all her other prescriptions, including Lisinopril, an ACE inhibitor that treats hypertension.

When filling the OsmoPrep prescription, pharmacist Kelley Branchfield disregarded a warning on the computer screen that OsmoPrep posed a risk of renal failure because of Kolozsvari’s age. A document provided to pharmacists also says that using OsmoPrep may interact with Lisinopril and cause kidney damage.

When the drug didn’t work as scheduled, Kolozsvari’s doctor called in another prescription for the pill. Again, Branchfield ignored a computer-generate notification, this time that the prescription exceeded the amount considered safe in such a short period of time and could increase risk of renal failure.

After taking the pills both times, Kolozsvari had tingling sensations in her arms that increased after taking the second pill. She went to the hospital and was diagnosed with kidney failure. She now must undergo dialysis for the rest of her life or receive a kidney transplant.

She and her husband sued her doctor, doctor’s nurse, CVS, and Branchfield for negligence and loss of consortium. The trial court granted summary judgment for CVS and the pharmacist.

In Christine and Ivan Kolozsvari v. John Doe, M.D., Jane Doe, R.N., Kelley Branchfield, R.Ph., and Hook SuperX, LLC, No. 32A04-1008-CT-525, the appellate judges only addressed whether Branchfield and CVS were negligent in not warning Kolozsvari about the possible serious side effects. They cited Indiana Code Section 25-26-13-1, which deals with pharmacists and says they must fill all valid prescriptions unless an appropriate exercise of professional judgment indicates that honoring the prescription would be against the patient’s best interests or be contrary to the patient’s health or safety. The judges also referenced Pharmacy Board Rule 1-33-2, which says a pharmacist must initiate an offer to counsel the patient on matters concerning the drug, including side effects or interactions, and Hooks SuperX Inc v. McLaughlin, 642 N.E2d 514, 517 (Ind. 1994).  

“Just as in McLaughlin, where the pharmacist knew that McLaughlin’s refill of his prescriptions was unreasonably rapid and this should have alerted the pharmacist to the substance abuse issues likely associated with this behavior, here, Branchfield had information that gave rise to a duty to exercise professional judgment under the statute,” wrote Judge L. Mark Bailey.

The judges remanded for further proceedings.

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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