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Medical Malpractice: Pharmacy Law.

The casual reader who takes this book from the shelf may wonder if it is possible to produce a work combining the highly technical areas of law and pharmacy. That is, can a book hold one's interest for 275 pages of material written in statute book style and another 161 pages of appendices? Allay all fears-the author, who holds degrees in both law and pharmacy, has succeeded admirably in mixing text and cases to entertain and inform the reader from start to finish. Do not worry about the 1986 date-the book contains a "pocket part" for periodic updates of law and cases.

From a brief history of the practice of pharmacy to a complete listing of pharmacy schools, degrees, organizations, associations, standards of practice, literature sources, etc., Professor Brushwood answer almost every conceivable question a lay person would have about the practice of pharmacy. He deals with the use of generic drugs; "legend" versus "non-legend" drugs; what parties can lawfully dispense drugs; the meaning of "Rx"; number of refills; controlled substances; government regulation; and finally, the proper way to administer a shot in the hip (upper outer quadrant). The 150 or so pages devoted to pharmacy practice are by themselves worth the price of the book.

However, there's much, much more. Perhaps the primary purpose of the author is to create an awareness of the many ways a pharmacists can incur a malpractice action. He lays out the elements of a prima facie case for tort liability, and relates each element to the professionals situation. The first element is the general duty of care, measured by the standards of a reasonably prudent pharmacist set by local custom and practice, as long as they do not depart drastically from national standards. So far, the expanding role of pharmacy into risk management and patient orientation has not affected court decisions, but should be a liability-reducing factor in the future. The breach of this duty embraces a number of acts, among them "wrong drug", "wrong dosage", and "wrong label."

The negligent (or intentional) act must be not only the actual cause of injury, but the legal cause (which deals with the question of foreseeability of injuries to the plaintiff, and whether or not the law should contemplate defendant liability under the circumstances). Both conditions must be satisfied. Actual cause may be extremely difficult to prove because of the complex makeup of the human body and multiple possible drug reactions.

Finally, the plaintiff has to prove damages for wrongful death, wrongful life (disability), ore wrongful birth, (as in a recent case where the wrong drug was given for a prescribed contraceptive). Liability for punitive damages can result from an intentional wrongful act, without just cause or excuse, as well as actual malice.

Separate chapters treat such varied liability-incurring acts as "false arrest"; "false imprisonment"; "invasion of privacy"; "defamation"; "breach of warranty"; "vicarious liability"; and "strict liability without fault." The exposures of hospitals, physicians, and drug manufacturers are also treated as they relate to prescribing, packaging, dispensing, and labeling drugs. Topic range widely from the role of "informed consent" to be "Rule of Frye" in expert testimony.

Professor Brushwood concludes with a masterful discussion of the "Law-Science interface," and suggestions for reconciling the different worlds in which each group resides. His insight into the use of the scientific method by the medical and pharmacy professions and the use of logic and evidence by the legal profession is most revealing and helpful in beginning the reconciliation process. Highly recommended, not only for the attorney and health care professional, but the interested lay person as well.
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No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1992 Gale, Cengage Learning. All rights reserved.

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Author:Murrey, Joe H., Jr.
Publication:Journal of Risk and Insurance
Article Type:Book Review
Date:Mar 1, 1992
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