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Articles Posted in improperly Filled Prescriptions

Under Massachusetts law, a pharmacist or druggist who misfills a prescription can be held liable in a pharmaceutical negligence suit. In such cases, the plaintiff has the burden of proof, and several procedural requirements must be met in order for the plaintiff to prevail. If you or someone in your family has been hurt by the mistake of a drug store or pharmacy, you should talk to a lawyer to learn more about your legal rights. Waiting too long to get legal advice about your case can result in forfeiture of what might otherwise have been a valid and valuable claim for pharmaceutical malpractice.

Facts of the Case

In a recent case initially filed in Massachusetts state court but removed to the United States District Court for the District of Massachusetts, the plaintiff was a man who was prescribed the drug Levaquin for treatment of a head cold. Levaquin is a quinolone antibiotic also known as levofloxacin. When the plaintiff attempted to get his prescription filled at the defendant pharmacy, the pharmacist who was on duty received a “hard stop” warning on his computer indicating that the plaintiff was allergic to quinolones. The pharmacist looked into the matter further and saw that there was conflicting information that included a prior statement by the plaintiff to the effect that he “in fact had no quinolone allergy” and had been prescribed quinolones on multiple occasions in the past. As per the defendant’s policy in such situations, the pharmacist exercised his “individual judgment,” ultimately deciding to go ahead and dispense the Levaquin.

After suffering an allergic reaction to the medication, the plaintiff filed suit in state court, seeking $650,000 in compensation for his injuries. After the defendant removed the case to federal court, it moved for summary judgment. The district court found that the case had been properly removed to federal court based on diversity jurisdiction, despite the defendant’s meager settlement offer of $5,000. The court also agreed with the defendant that it was entitled to summary judgment on the plaintiff’s claims for negligence, breach of warranty, and unfair or deceptive practices in violation of Massachusetts General. The plaintiff sought appellate review.
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According to studies, about two out of three Americans take at least one prescription drug. To get their medications, most patients must visit a pharmacy at least once a month. What happens when there is a problem with the paperwork that would normally allow the patient to receive the medicine in a timely fashion?

In a recent Massachusetts pharmacy error case, a 19-year-old patient died after she was denied a life-saving medication because her doctor had not completed a certain insurance form. The pharmacy claimed that it owed no duty to the patient under the circumstances, but the state’s highest court held otherwise.

Facts of the Case

The United States Supreme Court has two basic types of jurisdiction:  original and appellate. “Original jurisdiction” refers to cases over which the Court may hold a trial and render a judgment based upon the facts and the law. By contrast, “appellate jurisdiction” is the power of a court to review and, if warranted, revise decisions made by lower courts.

In an average one-year term, the United States Supreme Court receives around 10,000 petitions for review. However, in most cases, the Court has discretion as to whether to accept a case for appellate review, and an average of around 75 or 80 writs of certiorari granting review are handed down annually. Many of the cases for which certiorari is granted arise from the federal court system, but there are also some that have their origin in one of the state courts.

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Product liability cases can run the gamut from household items to automobiles to medical devices and drugs. One particular drug, an antidepressant manufactured by Forest Pharmaceuticals and commonly known as “Lexapro,” recently came under fire in the case of Marcus v. Forest Pharmaceuticals, Inc. Lexapro, which belongs to a class of antidepressants known as “selective serotonin reuptake inhibitors,” was first approved to treat adults for depression in 2002. It was later approved for use in adolescents.

The case was originally filed in a federal court in California in May 2013 and sought certification as a class action lawsuit. It was moved to the United States District Court for the District of Massachusetts by the Judicial Panel on Multidistrict Litigation because of ongoing multidistrict litigation there concerning Lexapro.

Allegations in the Plaintiffs’ Complaint

The plaintiffs in the case were parents whose adolescent son was prescribed Lexapro for depression in April 2009. The basis of their complaint was that the defendant pharmaceutical company omitted material efficacy information in violation of California state consumer protection laws. They averred that Lexapro’s label overestimated the effectiveness of the drug, thereby misleading both the parents and their son’s doctor. According to the parents, the federal Food and Drug Administration (FDA) accepted questionable and flawed data offered by the pharmaceutical company regarding Lexapro’s effectiveness for the treatment of adolescent depression. The parents further averred that Lexapro is, in actuality, “no more clinically effective than a placebo.” They sought to certify a class of all Californians who purchased Lexapro for an adolescent from March 2009 until present.

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One of the fundamentals of negligence law, which applies in personal injury litigation such as medical malpractice cases, is the requirement that the defendant in the case owed a legal duty to the plaintiff.

Sometimes, the duty is obvious, such as in car accident cases in which drivers owe one another a duty to exercise due care when operating a vehicle. In such cases, the dispute usually centers on whether the duty was breached and, if so, what compensation is due to the plaintiff.

There are some cases, however, in which the issue of duty is a more complicated question. Recently, the Supreme Judicial Court of Massachusetts was asked to decide whether a Massachusetts hospital had a duty to patients of a doctor who left its employment and moved to another state.

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Dozens of new product liability cases have recently been filed in the U.S. District Court for the District of Massachusetts against the manufacturer of the dialysis drugs GranuFlo and NaturaLyte, bringing the number to over 2,000 in the District of Massachusetts alone. Other suits are also pending in other courts across the country.

The plaintiffs in the lawsuits allege they or a family member suffered cardiovascular or other heart problems after being administered GranuFlo or NaturaLyte during dialysis.

In a 2012 recall of both Naturalyte and Granuflo Acid Concentrate, the manufacturer cautioned clinicians to be aware of the concentration of acetate or sodium diacetate in the products because of the possibility of high serum bicarbonate level in patients undergoing hemodialysis in certain situations. According to the recall, improper use of Naturalyte and Granuflo could contribute to metabolic alkalosis. Patients with metabolic alkalosis are at significantly higher risk for several serious medical conditions, including hypokalemia, low blood pressure, cardiac arrhythmia, hypoxemia, and hypercapnia. If not treated appropriately, cardiopulmonary arrest could result.

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On October 26, several law enforcement agencies in the Cape hosted the National Prescription Drug Take-Back Day. The Cape Cod Times reported that fourteen towns took part in the event to help rid localities of potentially dangerous prescription drugs. The National Drug Take-Back Day, which is sponsored by the U.S. Department of Justice Drug Enforcement Administration (the “DEA”), allows citizens to drop off their unused and out-of-date prescription drugs, no questions asked. The program provides for a safe, convenient, and responsible way for Cape residents to dispose of their unused and dangerous drugs while also educating the public about the problems of prescription drugs. As experienced prescription medical malpractice attorneys, we have seen first-hand the injuries and pain that prescription drugs can cause if not properly prescribed.

Prescription drug abuse in the U.S. concerns many healthcare and law enforcement agencies. Overdoses involving prescription drugs have soared in recent years. A 2009 study by the Centers for Disease Control (the “CDC”) indicated that, for the first time, prescription drugs have surpassed all other drugs as the biggest cause of drug overdoses. The CDC has also found that the increased rate of drug induced fatalities have nearly doubled since 2000 while equivalent rates for homicides, motor vehicle fatalities, and firearm fatalities have all dropped.

The National Drug Take-Back Day is one way of removing these dangerous drugs from the public and preventing abuse. Once prescription drugs are no longer needed, patients are reluctant to dispose of them in the trash or flush them down the toilet because of environmental concerns. Keeping our landfills and water free from drugs and chemicals ensures the health and safety of our natural resources. Returning prescription drugs to a Take-Back Day program is the most environmentally protective way to dispose of unused medications. Continue reading

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