Whether defending a lawsuit claiming pharmacist/pharmacy negligence or against an accusation filed by the Board against a licensee, the use of a pharmacist as an expert witness is essential. Pharmacists are viewed by the public to have the knowledge or expertise needed to decide the facts of many aspects of medicinal care. Were there any contradictions to using a specific pharmacologic agent? Were warnings ignored? Were other medications being used concurrently that could have interacted? Did the patient have side effects in the past with similar medications? Were the adverse effects reported related to the therapy prescribed? In an administrative action by the Board, did the Pharmacist follow regulations and procedures applicable to maintaining one’s license in good standing?
Why a Pharmacist Expert Witness is Necessary?
Expert witnesses are allowed to express their opinion as to whether the defendant conformed to the prevailing standard of care under the existing circumstances. Pharmacy standard of care cases, like medical malpractice claims, usually require the testimony of expert witnesses. As explained by pharmacist expert, Adam Kaye, “Jurors would never be expected to know, if the average pharmacists was aware that toxic optic neuropathy can occur following the chronic use of cyclobenzaprine (Flexeril). Would it be important for the jury to know if the average physician that prescribes this medication to reduce skeletal muscle spasms is even aware of a potential to cause toxicity? When it comes to pharmacy malpractice cases, do Pharmacists have a duty to warn the average patient of its usual side effects? What if the patient is already on several medications for an ophthalmic disorder like glaucoma?” These are answers that a pharmacist expert may provide to assist the judge or jury.
Pharmacist defendants often have to make financial decisions about hiring a pharmacist to review or consult on a legal case. Often, the urge is that the Pharmacist believes he/she can testify on his/her own behalf. However, the appearance of bias, subjective opinions and a personal stake in the outcome overshadows any cost savings benefit. The testimony of a well‐ educated and respected expert in their field may be all that is needed for a jury or administrative law judge to render verdict or decision in favor of a pharmacist or physician.
A pharmacist expert is perhaps the expert who gains the most trust from the trier of fact (jury or administrative law judge). Pharmacists have been placed at or near the top of all “trusted” professions. In the 2012 in Gallup’s Honesty and Ethics Survey, pharmacists placed second behind nurses as the most trusted profession. As one of the most trusted professions, a jury would be expected to consider the expert‐pharmacist’s opinion whether a case involving miss‐ filling prescriptions or failure to warn issues. The same holds true for administrative hearings. A well‐versed and respected pharmacist providing expert testimony is usually given deference by the administrative law judge as they hear cases involving all licensing issues (doctors, nurses, construction contractors, to name a few.) The public’s high regard for pharmacists is a longstanding trend and because of the pharmacist’s expertise in medication formulation and utilization, their value to legal cases is essential.
If you are faced with a BOP Accusation, a lawsuit or an audit, FMG Pharmacy Law is here to help you.
Fredrickson, Mazeika & Grant, LLP, is a full service law firm with offices in San Diego, Las Vegas, San Francisco and Los Angeles. The firm’s specialty areas include construction law & construction defect, products liability, personal injury & property damage, business & real property transactions, business litigation, transportation litigation, pharmacy law, environmental/toxic tort claims, insurance law, real estate & land use litigation, equine law, and general civil litigation.
Copyright 2016, Fredrickson, Mazeika & Grant, LLP