The U.S. District Court for the District of South Carolina recently handed ruled on a motion to dismiss, filed by Walgreens in a negligence lawsuit regarding improperly dispensed fertility medication.
In the case,
Caesar v. Walgreen Co., Dist. Court, D. South Carolina (2013), the plaintiffs allege that Walgreens improperly filled her prescription at three times the proper dosage. The couple was in the process of attempting to conceive a child through the process of in vitro fertilization (“IVF”). Following some testing regarding her levels of thyroid stimulating hormone (“TSH”), she was prescribed 50 mcg of levothyroxine in order to lower her TSH levels to an optimum number for conception.
However, instead of being given the 50 mcg, Walgreens provided her with a dosage of 150 mcg, which caused her TSH levels to drop dramatically to 0.006, far below the optimal levels of 1 and 2 for conception and implantation. She had filled her initial prescription and subsequent refills at the same Walgreens for a period of three months.
In addition to the harm to the wife in altering her TSH levels, the husband had undergone a surgical procedure to harvest sperm directly from his testicle, in order to provide genetic material for the IVF procedure. Following the unsuccessful IVF attempts, the husband’s sperm supply had been completely exhausted, and the plaintiffs lost the ability to have a child with their genetic makeup.
The complaint alleges a cause of action for negligence arising out of the improperly filled prescriptions. The husband also separately alleges a negligence action arising out of Walgreens’ failure to properly fill prescription for his wife, due to the harm to him. Finally, the plaintiffs jointly allege a cause of action for negligence arising out of Walgreens’ failure to properly fill the wife’s prescription which frustrated “their desire to have a child who is solely ‘their’ offspring” and the emotional damages resulting from that loss.
In response to the complaint, Walgreens moved to dismiss the case regarding the husband’s separate negligence claim, and for the plaintiff’s joint negligence action, alleging the claims did not allege sufficient facts that state a claim upon which relief can be granted, which is the standard in deciding this type of motion.
In response to the motion, both of the plaintiffs submitted additional affidavits, containing additional facts not within the original complaint. However, those additional affidavits could not be considered by the court in this case, as that would transmute the motion to dismiss into a motion for summary judgment, as it would require the court to consider the merits of the claims. Therefore, the court could not evaluate those facts, and the motion to dismiss was denied.
Although the decision was based upon a rather nuanced Federal Rule of Civil Procedure, it is an excellent illustration of the type of damage that can be done by prescription errors. In this case, there isn’t really a physical injury per se, but the impact of the damage done is irrevocable. Although the plaintiffs in the case may not have been able to conceive had the wife’s medication been filled properly, they will never again have the chance to know what could have been, as Walgreens error seems to have definitively forced the failure. This case gives further meaning to the rather expansive sense of what it means to be harmed by a prescription error. It will be interesting to see how the case proceeds.
If you or a loved one has been harmed as a result of a prescription error, contact the pharmacy error attorneys at Lebowitz & Mzhen,LLC. Our attorneys have extensive experience in representing victims or family members of those who have been harmed, injured, or killed by medications that were prescribed, dispensed, or administered incorrectly. Contact us today in order schedule your free and confidential consultation through our website, or by calling us at (800) 654-1949.
More Blog Posts:
Supreme Court Affirms FDA Approved Drug Labels Do Not Shield Brand Name Drug Makers from Liability, Pharmacy Error Injury Lawyer Blog, published November 20, 2013
Massachusetts Senate Passes Bill Regulating Compounding Pharmacies, Pharmacy Error Injury Lawyer Blog, published November 13, 2013