Austin v. CVS Pharmacy LLC
Allegations that a pharmacy did not follow directions to refrain from substituting a generic version of a drug sound in medical malpractice, as opposed to ordinary negligence, because the defendant's pharmacist was required to use his or her judgment as a health care provider. Allegedly, the plaintiff's doctor wrote a prescription and instructed the plaintiff and the defendant pharmacy that they should refrain from substituting a generic drug for the prescribed drug. The plaintiff sued the defendant pharmacy, alleging that the pharmacy wrongly substituted a generic drug, and the plaintiff was injured. The defendant pharmacy moved to dismiss, because the plaintiff did not attach a written opinion from a similar healthcare provider to the plaintiff's complaint. The plaintiff objected that the plaintiff's complaint sounded in ordinary negligence, as opposed to medical malpractice, because the defendant's pharmacist was only required to fill the prescription as written, without use of medical judgment. Connecticut General Statutes §52-190a requires that plaintiffs provide written opinions from "similar healthcare providers" when they file suits alleging medical malpractice. The court found that the plaintiff sued the defendant pharmacy in its capacity as a medical professional. The alleged negligence is of a specialized medical nature that arose out of the medical professional-patient relationship and the alleged negligence required the use of medical judgment. "[F]illing of a prescription," wrote the court, "entails the use of judgment beyond simply reading it." The defendant's pharmacist was required to use his or her judgment as a health care provider, and the court granted the defendant's motion to dismiss.