The Pharmaceutical Journal
Vol 269 No 7214 p318
7 September 2002

This article
Reprint
Photocopy

PDF* 40K

Why pharmacists live in a risky world

By Terry Maguire

Perhaps it is my sense of fair play but I was genuinely surprised to read that six out-sized Americans are taking legal action against, that most tangible expression of American culture, fast food restaurants. They feel strongly that they were given insufficient information by the fast food stores about the weight-gain-potential of the food they were served in portions large enough to feed an African village for a month.

I wish them success in their search for justice and look forward to the case with curious interest. I suspect they have been advised by their legal council not to reduce their body mass until after their court appearance. It would be more impressive to a jury to see the "fat in the flesh" as it were, rather than have to depend on those life-size photographs used by slimming magazines. If true, legal council be warned, you might find yourself in the dock next for stopping your clients achieving a healthy weight.

Perhaps I am being unfair and a tad too cynical but my personal value system, although endorsing an individual's right to live as he or she chooses, firmly balances this right with personal responsibility for any nasty effects emanating from the chosen lifestyle. I may choose to eat myself into 44 inch-waste trousers or drink myself senseless but its seems rather churlish to then try and blame Kentucky Fried Chicken for my grotesque abdomen or Guinness for making me fall down the stairs and break my leg, and to seek compensation in the process.

But then cases of a not dissimilar nature commonly arrive at court with varying degrees of success for the plaintiff. The legal question is simple, is there a duty of care owed by the one who provides the product or supplies the service? If the answer is yes, and it can be shown that that duty of care was not provided, compensation is due.

A successful class action against Philip Morris, the giant American tobacco company, secured significant compensation for a group of smokers who developed smoking-related illnesses. Whereas most have sympathy for smokers dying of cancer or other chronic disease, many thought that they knew the risks but continued to smoke anyway and therefore must accept responsibility. The case hinged on whether the tobacco company had information at the time these people started smoking that proved cigarette smoking is dangerous to health but did not make this information public. If this was the case the tobacco company failed in their duty of care. The jury were convinced that they did. This landmark ruling in the State of Florida strangely has not yet been replicated by other smokers in other parts of the United States or in Europe, which perhaps shows, if nothing else, the complexity of the law in this matter.

In the 1980s, women addicted to benzodiazepines took a class action against a pharmaceutical company. The case hinged on the question of whether the company had provided sufficient information to these women on how addictive the drugs were. The class action was unsuccessful and was dropped with the plaintiffs claiming that their attempt to obtain justice was frustrated by a legal system that favoured large businesses. But there were many twists to this case, one being the responsibility of the general practitioners who in the course of things became rather anxious. The product licence for benzodiazepines had been changed and clearly stated the use of the medicines for certain indications but only for short periods of time. GPs who were prescribing the drugs for long periods were effectively using the drugs outside the licence and were therefore responsible. The duty of care was shifted in the scramble to find a scapegoat.

Perhaps the most bizarre cases come from Ireland. The Irish government in the late 1980s suffered considerable embarrassment and had the nation's funds severely depleted by a series of court cases mostly emanating from their military. The first involved soldiers on peacekeeping duties in Lebanon, who successfully sued the government because they suffered sunburn. Celtic skin is, as I know only too well, highly sensitive to UV rays. Soldiers had not been provided with proper shade or other protection from the sun while keeping the peace and dodging friendly and unfriendly gunfire. The government were found to have failed in their duty of care.

Spurred on by the success of their lobster-like colleagues, an army brass band successfully sued the government for hearing loss. The hall in which they held their band practices was deemed too small for the purpose. This caused the pitch perfect warrior-musicians ear damage. There were more bizarre cases causing one shocked commentator to wonder if the next case would come from a regiment suing for eye damage due to the high shine on their regulation army boots.

The Irish government moved quickly. Swiftly and stealthy they altered government contracts to ensure that if something untoward befell an Irish citizen, responsibility lay with a contractor not the government. At this time community pharmacy got a new contract. Few pharmacists could see beyond the offer of contract limitation — since dumped without warning by the government — and few appreciated that Clause 9 in the contract required a pharmaceutical care intervention when medicines were being dispensed. To my knowledge it has not happened but the contract could make it easy for a patient, where such an intervention failed to take place, to blame his or her pharmacist if they suffered, for example, a second heart attack in spite of being prescribed effective medication.

Some might think this impossible but it is likely that similar clauses will appear in the new pharmacy contracts in the United Kingdom. I would be surprised if they do not. In essence, the contract will say what pharmacists need to do and therefore implicitly will define the duty of care that pharmacists must provide when a prescription is being dispensed or service provided. Failure to do this, or even failure to show that it was done, will expose pharmacists to the risk of legal action.

With an eye on the US, it has been recognised for some time that the public are becoming more litigious in the UK. Unlike previous generations that were just happy and grateful that a service existed, the current generation is unwilling to accept services provided below standard. Litigation is becoming more and more likely for sources we would never have imagined five years ago.

Some years ago I attended a meeting to discuss the misuse and abuse of over-the-counter medicines. There was the usual platitudes from the OTC industry that abuse did not exist and there were denials from the profession that it was a wide scale problem. One speaker, a reformed addict, described his daily routine of travelling around Scotland to his favourite pharmacies to collect his cough remedy. He claimed to travel over 1,000 miles a week. It was his opinion that it was only a matter of time until someone addicted to painkillers or cough medicine would sue a community pharmacist who had supplied him or her with the medicine over a period of time and in such quantities that could not be regarded in any way to constitute medicinal use. Since I read about the American legal challenge against the fast food outlets I am in no doubt that the day has arrived when this is possible. Selling products, offering services to the public and employing people is becoming very risky business indeed.