Physican Expert Opinion Not Required in Medication Injury: S.D. Ohio

A claim against a pharmacy in dispensing the wrong medication is not necessarily a medical claim under Ohio's Malpractice Statute, a U.S. district court has ruled, allowing a non-physician to testify as to the plaintiff's injuries.

In Mason v. Ohio CVS Stores, LLC, (US S.D. Ohio 2019), the plaintiff, Pamela Sue Mason, sued CVS for violating Ohio's negligence and products liability laws. Mason claimed that a CVS store dispensed a bottle of Amitriptyline HCL that was prescribed for another person and inadvertently mixed in with her medications. Even though the bottle containing Amitriptyline was properly detailed the medication and that it was for someone other than Mason she took the medication.

Some day's later, Mason's niece called an ambulance when she noticed that Mason was “picking at the air” and “slapping herself.” Mason stayed in the hospital for three days.

Mason retained Patrick J. McDonnell, PharmD, FASHP, a professor of Clinical Pharmacy at Temple University, who specializes in adverse drug reactions, drug induced disease and medication safety. Dr. McDonnell expert report concluded that the Amitriptyline was the cause of her admission to the emergency department and then to the intensive care unit requiring mechanical ventilation.

CVS moved to exclude Dr. McDonnell, citing a “litany of cases” in the Court's words, to support its contention that Ohio law requires a physician to establish proximate causation in the case. Noting that Dr. McDonnell had stated that he “will let physician experts opine” on whether the medication caused “more permanent and sustained harm.”

The Court did not agree. Ohio's Medical Malpractice Statute applies only to those medical professionals enumerated in the statute, and pharmacists are not. As well, the Court found that CVS took Dr. McDonnell's statement out of context. Dr. McDonnell concluded that “the plaintiff's injuries were proximately caused by Amitriptyline ingestion.” Dr. McDonnell only left it to physicians to opine on the continued affect on Mason's pulmonary health.

CVS move to exclude Dr. McDonnell was denied.