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March 15, 2006

Maryland Court of Appeals Holds Pharmacy is Liable under Express Warranty Theory for Package Insert Directions on Doxycycline Use

In Rite Aid Corp. v. Levy-Gray, decided March 13, |PDF|Lexis| the Court of Appeals of Maryland held that a pharmacy was liable under express warranty theory for directing Levy-Gray, the plaintiff, to "take" a prescription drug, doxycycline, "with food or milk if upset stomach occurs." The plaintiff was treated by her physician for Lyme disease. He gave her a prescription for doxycycline. In doing so he told her to stop nursing while she took the drug but provided no other instructions as to how to take the drug. The plaintiff filled the prescription at Rite Aid Pharmacy. The plaintiff received the drug from the pharmacy, along with the "patient package insert," which provided that the drug should be taken "with food or milk if stomach upset occurs unless your doctor directs you otherwise." The plaintiff started taking the drug with water, but began taking it with milk the following day because of stomach upset. In addition, she also consumed large quantities of dairy products in order to maintain her breast milk when she resumed nursing her son. She alleged that her consumption of the milk and other dairy products reduced the absorption of the drug and prevented it from operating as effectively as possible, and that that failure proximately caused the post-Lyme syndrome for which she sought recovery against Rite Aid. The plaintiff sought recovery under negligence and breach of express warranty claims. The jury found in favor of Rite Aid on the negligence claim but in favor of the plaintiff on the express warranty claim, awarding damages of $250,000.

The Court of Appeals noted that other courts have consistently refused to impose the Uniform Commercial Code warranties of fitness and merchantability on pharmacies because the prescription of medication is part of the delivery of medical services, but that Rite Aid provided no authority for the proposition that express warranty claims should be barred. The court held that the facts supported the express warranty claim. The court also noted that while it has adopted the learned intermediary doctrine with respect to the ordinary pharmacist-patient relationship where the pharmacist simply fills the prescription ordered by the physician, the doctrine should not be extended "to those cases in which the pharmacy is disseminating information concerning the properties and efficacy of a prescription drug." The court declined to hold as a matter of law that the learned intermediary doctrine "precludes a pharmacy from being held liable for breach of an express warranty when it provides a package insert that could provide the basis for" an express warranty.

MKS

March 15, 2006 | Permalink

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