Probably few of us actually ever read the product insert that is in the box when we buy a prescription from the local pharmacy. We also likely would not think we have a claim against a pharmacy if we have a bad reaction to medication, or it doesn’t help us as we expect, unless the pharmacy gives us the wrong medicine. Maryland’s highest court has just ruled that a pharmacy may have far more liability than we might have imagined.
The Maryland Court of Appeals’ opinion in Rite Aid Corp. v. Levy-Gray addresses these issues. Ms. Levy-Gray had Lyme disease, and her doctor gave her a prescription for a medicine called doxycycline. She did not read the product insert before buying the prescription, but testified she relied upon Rite Aid’s name and previous experience buying medicines there. Rite Aid’s insert gave advice that the medicine should be taken with food or milk if an upset stomach occurs. It also made clear that there were no guaranties the medicine would work and the patient should consult her doctor.
Ms. Levy-Gray did have some stomach problems with the medicine and took it with milk, and the evidence was her diet also was heavily laden with cheese and other milk products so should could go back to nursing her child when the Lyme disease cleared. After initially stopping the medicine she then took another six week course of it, but even after the infection cleared she developed symptoms called post-Lyme disease which persisted. Eventually she filed suit alleging that milk inhibited the effectiveness of the medicine and led to her chronic illness, and that Rite Aid’s product insert was an “express warranty” that the product could still be effective when taken with milk. A jury eventually awarded her and her husband $250,000, and Rite Aid appealed.
The Court of Appeals ultimately upheld the verdict for the patient. In so doing it held that the “express warranty” cause of action did apply on these facts to a pharmacy. Such warranties are found in what is called the Uniform Commercial Code (UCC), a set of statutes now on the books in every state that govern commercial transactions including the sale of goods like medicine. An “express warranty” is any statement or affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis for the purchase. If the goods (in this case the prescription) do not perform as warranted, the buyer can sue for damages.
The Court rejected various arguments made by Rite Aid in seeking to overturn the judgment. Although prescriptions involve professional services, medicines were held to still be goods governed by the UCC. Despite the fact that the patient did not read the insert before deciding to buy this prescription, the Court noted the law does not require that the warranty be read before the purchase decision, so long as it could fairly be said to be part of the bargain. The fact that her doctor prescribed the medicine was also held not to be a defense as a matter of law, particularly where her doctor testified he relied on the pharmacy to provide the patient information on how to take the drug. Although the experts at trial differed on whether milk actually inhibited the performance of the medicine, if was up to the jury to weigh the evidence and decide if a warranty was breached.
It remains to be seen whether pharmacies will handle products any differently as a result of this ruling.