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Pharmacist Case Study: Failure to refer patient to a physician; False advertising

Indemnity Payment: Greater than $120,000
Legal Expenses: Greater than $160,000


Note: Monetary amounts represent only the payments made on behalf of the pharmacist and his pharmacy practice. Any amounts paid on behalf of the co-defendants are not available. While there may have been errors/negligent acts on the part of other defendants, the case, comments, and recommendations are limited to the actions of the defendants; the pharmacist and his pharmacy practice.

A 42-year-old male patient (plaintiff) went to the defendant pharmacist’s pharmacy for what seemed to be a bite or sore on the back of his leg. The area of concern was hard, blackish, painful in the center and had different shades of red around it. The patient advised the defendant pharmacist that he first noticed the area the prior evening when it was only a small red spot. Upon the defendant pharmacist’s inspection of the patient’s leg, the patient alleges that the pharmacist assessed the area as a brown recluse spider bite and stated “he had just the thing”. After prescribing and dispensing two topical medications (Erythromycin Topical Solution USP 2 percent and Clioquinol 3 percent with Hydrocortisone Cream 1 percent) to the patient, the defendant pharmacist instructed the patient to use the medications in its entirety and left the patient with a confident feeling that he knew the cause of the spot on his leg. The patient claims he was never told or given written communication by the defendant pharmacist to follow-up with a physician or emergency department if the area did not improve and/or became worse.

The patient used the medications assuming he would be better after a few applications of the topical medications. However, his condition continued to worsen over the next two days and he was compelled to go to the emergency department. After his wife transported him to local emergency department, the patient was told by emergency department physician that he should had seen by a physician for his leg and that one of the topical mediations “had made matters worse”. The patient was admitted in the hospital for 28 days with a diagnosis of community-acquired necrotizing Methicillin Resistant Staphylococcus Aureus (MRSA), which included multiple debridement surgeries, intravenous antibiotics and skin graft surgeries. The patient has been left with permanent scarring and permanent disability of his leg.

The patient was uninsured during his hospitalization and subsequent treatments. He alleged that he was forced to sell his house and 95 percent of his possessions to pay for his medical bills. The patient asserted a claim for lost wages, outstanding medical bills and credit card debt during his 16-month treatment in the amount of $180,000.


The patient’s experts were critical of the defendant pharmacist’s failure to refer the patient to a physician or emergency department. The standard of care is not to prescribe two medications, but direct the patient to immediately see a doctor or go to the emergency department. Criticism was also given to the pharmacist advertising as an “expert in prescribing pharmaceuticals” and to his pharmacy as “promising to provide the highest quality of patient care with 100 percent satisfaction”.

The possibility of a defense verdict was deemed to be less than 30 percent.

Risk Management Comments

Experts assessed the potential exposure/claim value of the case for all defendants (including statutory prejudgment interest) as being between $150,000 and $300,000.

Risk Management Recommendations

The prescribing pharmacist must:​
  • Develop maintain and practice professional written and spoken communication skills. Consider what information is essential to share, when to share it, how to share it (i.e., in writing, face to face or by telephone).
  • Comply with pharmacy and regulatory requirements, document all discussions with patients and ensure that this documentation is included in both the patient and pharmacy records.
  • Know competencies-including experiences, training, education and skills are consistent with the scope of work requested by my pharmacy and/or clinical setting.
The pharmacy owner must:
  • Prohibit messages that exaggerate benefits and minimize risks, or that may encourage prospective patients to expect care beyond the organizational capabilities.
  • Choose terminology with care, avoiding superlative words and phrases such as “best care,” “highest quality,” “state of the art,” which may result in allegations of breach of an express or implied warranty.
  • Regularly review advertising material and remove any outdated information.
  • Educate staff about marketing-related rules and polices, as well as risks associated with exaggerated treatment claims and implicit guarantees.
This publication is intended to inform Affinity Insurance Services, Inc., customers of potential liability in their practice. This information is provided for general informational purposes only and is not intended to provide individualized guidance. All descriptions, summaries or highlights of coverage are for general informational purposes only and do not amend, alter or modify the actual terms or conditions of any insurance policy. Coverage is governed only by the terms and conditions of the relevant policy. Any references to non-Aon, AIS, NSO, HPSO websites are provided solely for convenience, and Aon, AIS, NSO and HPSO disclaims any responsibility with respect to such websites. This information is not intended to offer legal advice or to establish appropriate or acceptable standards of professional conduct. Readers should consult with a lawyer if they have specific concerns. Neither Affinity Insurance Services, Inc., HPSO, nor CNA assumes any liability for how this information is applied in practice or for the accuracy of this information.

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