Whiting v. Rite Aid Corp.
28 F. Supp. 3d 1192
D. Utah2014Background
- Whiting sues Rite Aid for medical malpractice, res ipsa loquitur, and lack of informed consent arising from a pharmacist’s alleged advice about Sudafed for Mr. Whiting.
- Mrs. Whiting claims she consulted Smith, Rite Aid pharmacist, about safety of Sudafed for Mr. Whiting and that Smith discussed his medical history and approved use.
- Mr. Whiting allegedly had prostate issues not disclosed during the conversation.
- Sudafed allegedly worsened Mr. Whiting’s condition, leading to urinary problems, hospital visits, surgeries, and two-year debility culminating in death from an unrelated illness.
- Rite Aid moves for partial summary judgment arguing no pharmacist duty to warn about nonprescription drugs and the learned intermediary doctrine shields liability; the court denies the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a pharmacist have a duty regarding nonprescription drugs? | Whiting argues pharmacists owe duties for nonprescription drug advice. | Rite Aid contends no duty extending to nonprescription drugs. | Duty exists for nonprescription drug advice; not shielded by learned intermediary. |
| Is the learned intermediary doctrine applicable to nonprescription drugs? | Doctrine may not apply to nonprescription contexts allowing pharmacist liability. | Doctrine shields only prescription-drug warnings. | Learned intermediary doctrine does not apply to nonprescription drugs. |
Key Cases Cited
- Schaerrer v. Stewart's Plaza Pharmacy, Inc., 2003 UT 43, 79 P.3d 922 (Utah Supreme Court (2003)) (extended learned intermediary doctrine to pharmacists in prescription drug context; not to nonprescription drugs when issues arise about advice)
- Downing v. Hyland Pharmacy, 2008 UT 65, 194 P.3d 944 (Utah Supreme Court (2008)) (discusses pharmacist duty and learned intermediary doctrine in Utah)
- Normandeau v. Hanson Equip., Inc., 2009 UT 44, 215 P.3d 152 (Utah Supreme Court (2009)) (recognizes policy considerations in duty analysis)
- Schaerrer (cited as above), (see above) () (see Schaerrer for framework on pharmacist duty and learned intermediary)