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INTRODUCTION

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As discussed in Chapter 4, there are primarily four major defenses to negligence claims that a defendant may employ: (1) One or more elements of the negligence formula are missing; (2) contributory or comparative negligence exists; (3) assumption of the risk by the plaintiff; and (4) the statute of limitations. The following cases are used to illustrate each of these defenses.

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WHERE ONE OR MORE ELEMENTS OF THE NEGLIGENCE FORMULA ARE MISSING

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Often attorneys representing the defendant will attempt to dismiss negligence claims by demonstrating that one or more of the key components of the negligence formula are missing. Thus, if the defendant’s attorney can show that there was no duty on the part of the pharmacist required, that the pharmacist did not breach his or her duty, or that the injury that occurred was not actually or proximately caused by the pharmacist’s actions, then the defendant may have a good chance in having the case dismissed. The following case illustrates how the court concluded that there was no duty, thus no breach of duty, on the part of the defendant pharmacist.

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HOOPER V. PERRY DRUG STORES

Court of Appeals Michigan, 1996

Desired Remedy: The defendant pharmacy seeks summary judgment in a case where a plaintiff was prescribed Seldane, erythromycin, and other medication filled by the defendant pharmacy that ultimately caused the plaintiff’s death from myocardial infarction, secondary to coronary thrombosis.

Issues: Is a letter issued by the Department of Health and Human Services (DHHS) five weeks after the plaintiff’s death that was due to the combination of Seldane and erythromycin administration stating that the use of the two drugs concurrently has the potential of causing life-threatening arrhythmias, and that the use of the two drugs together is contraindicated, sufficient to make the dispensing pharmacy liable to the plaintiffImage not available.

Facts of Case: Hooper’s physician, Dr. Prabhaker, gave him prescriptions for Seldane and erythromycin. Hooper presented the prescriptions to a pharmacist at one of the defendant’s stores. The pharmacist filled the prescriptions as written and dispensed the prescribed medications to Hooper, who thereafter ingested them. On July 7, 1992, Hooper died of a myocardial infarction, secondary to coronary thrombosis.

Seldane is “terfenadine.” Erthromycin is a “macrolide” antibiotic. Almost two years before the death of the plaintiff’s decedent in this case, an August 6, 1990 letter entitled “IMPORTANT DRUG WARNING “ was issued by Marion Merrill Dow, Inc., the manufacturer of Seldane, to physicians and pharmacies, including Dr. Prabhaker and the defendant’s store. This letter provided in relevant part as follows:

General Precautions

Terfenadine undergoes extensive metabolism in the liver. Patients with impaired hepatic function (alcoholic cirrhosis, hepatitis) who are on ketoconazole or troleandomycin therapy or having conditions leading to QT prolongation (e.g., hypokalemia, congenital QT syndrome) may experience QT prolongation and/or ventricular tachycardia at the recommended dose. The effect of terfenadine in patients who are receiving agents which alter the QT interval ...

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