Chapter 9: Negligence (Part V) Miscellaneous Categories: Vicarious Liability and Premises Liability

INTRODUCTION

Included in this chapter are discussions and case presentations dealing with two additional areas of importance associated with the topic of negligence. Vicarious liability and premises liability cases represent a relatively high proportion of lawsuits brought against businesses, including pharmacies.

VICARIOUS LIABILITY

When a pharmacist employee makes a mistake on a prescription that causes injury to a patient who then takes legal action because of the error, usually both the pharmacist who was responsible for the error and the employer will be named in the filed lawsuit. Thus, any action taken against the employer for the liability created by the employee is referred to as vicarious liability. Another term specifically associated with employer-employee liability issues is the term respondeat superior, which means that the employer is jointly and severally liable with the tortfeasor employee for the tortious acts committed within the scope of employment. As you might guess, this gives a plaintiff a right of way to reach the so-called deeper pockets or the party that holds the larger sums of money, namely, the employer company.

The first case presented under this heading, Randle v. California State Board of Pharmacy, deals mainly with an intent by a pharmacist employee to misrepresent the filling of methedrine prescriptions and the State Board of Pharmacy’s imputing liability of this pharmacist’s actions on both the involved pharmacist and the owner of the pharmacy.

The case that follows, Harco Drugs v. Holloway, is a typical example of an employer being sued for the mistakes of its employees. However, several important issues are raised in the Harco Drugs case: (1) Was Harco Drugs, through its corporate office, negligent in not more carefully supervising its employees due to the number of mistakes reported over a three-year period (2) Because of not appropriately monitoring its employees when mistakes were made, should the pharmacy be adjudged grossly negligent rather than just simply negligent The Harco Drugs case represents a situation in which the employer places the employee in a position that increases the potential of error, thus creating the impression that total liability should be imputed to the employer. The minority dissenting opinion is also included to suggest that Harco Drugs was doing everything in its power to prevent errors of the type represented in the case, and that the number of errors over the three years was proportionally small and possibly insignificant based upon the number of total prescriptions filled over this period of time.