A new Texas law gives pharmacists “exclusive authority” to decide whether or not to dispense a drug—and they have no obligation to explain why.
House Bill 2561, which became effective on September 1, 2017, as Texas Occupations Code Section 551.006, was originally envisioned as a tool to make it easier for pharmacists to turn away patients who might be abusing opiates and painkillers. During the legislative process, though, language was added to the bill that would allow refusals to fill prescriptions on any ground. The law says, "Notwithstanding any other law, a pharmacist has the exclusive authority to determine whether or not to dispense a drug."
As a Houston, Texas medical malpractice lawyer, I welcome this law because it empowers pharmacists to apply their extensive training on how drugs work and interact with each other in a way that promotes patient safety.
I have handled several cases where one of the issues is whether a pharmacy should have filled a valid prescription signed by a physician. Pharmacy and medication errors can have devastating, life-threatening or ending consequences for patients. During the investigation and discovery phases of those cases, I learned that modern pharmacies have sophisticated computer systems that warn against drug-drug interactions.
These systems are particularly effective when a patient fills all prescriptions at the same pharmacy or chain. When a new prescription is entered into the pharmacy computer system, the software automatically checks that drug against records of other drugs that the patient has filled.
A contraindication is the highest level of warning, meaning that two drugs should never be taken together, or during a time interval when they are both pharmacologically active in the body.
Other warnings may suggest that two drugs should not be taken together unless there is a deliberate clinical justification.
The standard of care requires pharmacists to exercise clinical judgment before clearing a contraindication or warning and dispensing a prescription. Unfortunately, in my experience, I have seen instances where pharmacists ignore these computer-generated warnings and fill a prescription without picking up the phone and discussing the potential patient risk with the prescribing provider.
In litigation, these negligent pharmacies and pharmacists often allege that it is ultimately up to the physician, physician’s assistant, or nurse practitioner who writes the prescription to decide if it is safe for the patient.
Potential impact of new Texas laws
Over the past few years, new Texas laws have provided more rights and responsibilities to pharmacists. In addition to House Bill 2561, since 2014, Texas pharmacies have been required to provide new and existing patients with counseling from a pharmacist for each new prescription drug order.
My hope is that these laws will elevate the standard of care and require pharmacists and pharmacy staffs to exercise more independent judgment about whether a prescription is safe for a patient.
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Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2017, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.
