Kowalski v. Rose Drugs of Dardanelle, Inc.
2011 Ark. 44
| Ark. | 2011Background
- Kevin Curry died August 28, 2005, from mixed drug intoxication with alcohol; autopsy performed.
- Four days before death, Curry saw Dr. Mann who prescribed multiple CNS depressants and other drugs while Curry was already on several medications.
- Curry’s prescriptions, including those prescribed by Mann, were filled at Rose Drugs on August 22, 2005.
- Estate filed wrongful-death action against Rose Drugs and Dr. Mann, alleging negligent prescribing and negligent filling/monitoring by Rose Drugs.
- Rose Drugs moved for summary judgment, relying on Kohl v. American Home Products Corp. to argue no general duty to warn or refuse to fill dangerous prescriptions.
- Circuit court granted summary judgment, ruling no duty beyond filling as prescribed and labeling; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do pharmacists owe a general duty to warn or refuse dangerous prescriptions? | Kowalski argues Rose Drugs had a duty beyond filling, to warn or question prescribing physician due to contraindications. | Rose Drugs contends no general duty to warn or refuse; duty is limited per Kohl and learned-intermediary doctrine. | No general duty to warn or refuse; duty lies with physician. |
| Is the learned-intermediary doctrine applicable to pharmacists in Arkansas so as to bar a pharmacist’s duty to warn? | Estate asserts pharmacist may have independent duty not to fill dangerous prescriptions in light of contraindications. | Rose Drugs argues doctrine assigns warning responsibility to physician, not pharmacist; applying it defeats duty to warn by pharmacist. | Learned-intermediary doctrine applies; pharmacist not required to warn unless exceptions apply. |
| Do federal OBRA or Arkansas regulations create a private duty for pharmacists to warn or intervene? | OBRA and Arkansas regulations impose duties to counsel and monitor drug interactions; failure to warn could breach. | OBRA does not create private right of action; regulations do not establish a general civil duty to warn. | No private duty created by OBRA or Arkansas regs to warn in this case. |
| Does Arkansas statutory/regulatory framework, including Regulation 9, create a duty to warn or consult that creates a triable issue? | Regulation 9 requires counseling and communication; pharmacist should warn or consult under certain circumstances. | Regulation 9 does not impose a broad legal duty to warn; standard is limited to monitoring and physician communication. | Regulation 9 does not create a general duty to warn; no triable issue on breach absent other facts. |
Key Cases Cited
- Kohl v. American Home Products Corp., 78 F.Supp.2d 885 (W.D. Ark. 1999) (no general duty to warn customers absent contraindication)
- West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (Ark. 1991) (learned-intermediary doctrine—physician warns patient)
- Marlar v. Daniel, 368 Ark. 505, 247 S.W.3d 473 (Ark. 2007) (duty is element of negligence; duty questions are legal)
- Coyle v. Richardson-Merrell, Inc., 526 Pa. 208, 584 A.2d 1383 (Pa. 1991) (warning duties related to drug risks discussed in context of learned-intermediary)
- Horner v. Spalitto, 1 S.W.3d 519 (Mo. Ct. App. 1999) (pharmacist counseling and duty to warn with contraindications recognized in some jurisdictions)
- Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658 (Miss. 2002) (recognizes exceptions to no-duty rule where contraindications exist)
- Lasley v. Shrake’s Country Club Pharmacy, Inc., 179 Ariz. 583, 880 P.2d 1129 (Ariz. Ct. App. 1994) (doctor-pharmacist duties in warning decisions discussed)