Florida Appellate Court Limits Nursing Home Victims' Right to Sue Pharmacy
Florida pharmacy malpractice lawyers have been waiting on guidence from the appelate courts on whether nursing home consulting pharmacists can be held responsible for their negligence. Unfortunately, at least one appelate court recently concluded they could not. On April 4, 2008 Florida's Second District Court of Appeal held in The Estate of Norma J. Johnson v. Badger Acquisition of Tampa LLC, 2008 W.L. 899280 that a consultant pharmacist hired by a nursing home does not owe a legal duty to a nursing home resident when the conduct in question involved giving negligent advice to the nursing home and or treating physicians. Mrs. Johnson was recieving medicine while living in the nursing home that was prescirbed by her physician and administered by the nursing home nurses. The consultant pharmacist had a contract with the nursing home to review nursing home records, review medication and administration records, review drug regimen records of the patient, provide training and oversight, and establish procedures for the pharmacy. The consulting pharmacist gave no advice directly to the nursing home resident and had no authority to alter or discontinue a resident's pharmacy regimen. Instead, the contract and state law limited the consulting pharmacist to providing advice to the nursing home resident's treating physician and the nursing home itself. The court, therefore, concluded that the duty to the resident rested with the treating physician and the nursing home instead of the pharmacist.
The Badger case is a setback for nursing home residents because the consulting pharmacy setup in that case is standard throughout the industry in Florida. Physicians and nursing homes nursing home abuse will point to the consulting pharmacist by testifying that they relied on the advice of the consulting pharmacist and therefore should not be held responsible for the outcome. Since the consulting pharmacist cannot be sued by the nursing home resident for pharmacy malpractice, the physician and nursing homes may have an empty chair to point to at trial. Nursing Home Neglect Lawyers should respond aggressively to this argument with a Motion in Limine citing case law that holds that nursing homes have a non-delegable duty to provide appropriate care to their residents. See NME Props. Inc. v. Rudich, 840 So.2d 309, 312,13 (fla. 4th DCA 2003)(holding that one can contract away the doing of a task but cannot contract away the ultimate legal responsiblity for a task you are required by law to perform). Unfortunately, some judges may allow the argument and use the Rudich case to fashion a jury instruction.
Scott Distasio
Tampa nursing home abuse lawyer
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
1-888-595-0022
