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In reversing a 1999 jury verdict against a Wal-Mart Stores Inc. pharmacy, a Texas appellate court has determined that pharmacists are not required by law to warn patients of the possible adverse side effects of prescription drugs. The parents of Cameron Pettus sued Wal-Mart and other defendants after their son’s death in 1993, charging that the druggist had failed to warn them that the desipramine prescribed for the child’s diagnosed attention deficit hyperactivity disorder was not approved for use for ADHD and was dangerous for children. Cameron was 14 when he died of a chronic allergic reaction to desipramine that destroyed his vital organs. NO LEGAL OBLIGATION In March 1999 an Austin, Tex., jury awarded the plaintiffs $3 million. After set-offs for previous settlements and addition of prejudgment interest, the judgment against Wal-Mart was entered at slightly more than $1 million. But on Aug. 10 the Texas 3rd District Court of Appeals reversed the trial verdict and rendered a take-nothing judgment in favor of Wal-Mart, determining that a generalized duty to warn would “unnecessarily interfere” with the physician/patient relationship by “compelling pharmacies seeking to escape liability to question the propriety of every prescription they fill.” The court added that although pharmacists can warn about side effects, they “are not legally obligated to do so.” The drug was first prescribed for Cameron Pettus when he was 12, said plaintiffs’ attorney Donna T. Bradshaw, a Denver sole practitioner. The prescription was first filled at a Walgreen’s pharmacy, she noted, and this druggist did not include a manufacturer’s package insert, warning that the drug was “not recommended for use in children.” In addition, the insert noted that there had been a report of sudden death in an 8-year-old who had been treated for two years. “There have been additional reports of sudden death in children,” the insert added. The child’s doctor, Lorraine Schroeder, did not warn about any serious side effects either, Bradshaw said. Cameron began taking the medication in April 1991 and first complained of chest and groin pain two months later. He was diagnosed with musculoskeletal pain connected to playing sports. NO CONNECTION MADE The chest pains continued, and in late 1991, he was hospitalized. No one indicated a connection with the medication, Bradshaw noted. In August 1992, his mother switched the prescription from Walgreen’s to a Wal-Mart store. At this time, said Bradshaw, Wal-Mart’s pharmacists also failed to warn about any side effects and did not supply the drug manufacturer’s insert. The Wal-Mart pharmacist who filled the prescription testified at trial that she knew the prescription had been first filled at Walgreen’s and assumed that Morgan had been informed of the possible side effects. Cameron continued taking the medication. He went into a coma in July and died on Aug. 2, 1993. His parents sued Schroeder; Sidmak Laboratories, the maker of the drug; Walgreen’s; and Wal-Mart, as well as other doctors and clinics where the boy had been taken. All but Wal-Mart settled. Morgan v. Wal-Mart Stores Inc., No. 95-07922 (Dist. Ct., Travis Co.). The jury apportioned liability for the death at 15 percent to Wal-Mart; 60 percent to Schroeder; 14 percent to Walgreen’s; and 11 percent to the boy’s parents. Wal-Mart appealed, arguing that as a matter of law, the duty to warn of the potential dangers of desipramine rested with the prescribing physician. “This death is indeed regrettable and sad,” said Thomas Williams, spokesman for Wal-Mart, “but we didn’t do anything wrong.” The plaintiffs contended that under the Texas Pharmacy Act, pharmacists had a general duty to warn customers of potential side effects. But the appeals court ruled that courts are not required to “accept it as a standard for civil liability.” Plaintiffs’ appellate counsel Jennifer B. Hogan of Houston’s Hogan, Dubose & Townsend said that after the appellate court decision, “Wal-Mart and other retailers still have to warn customers about lawnmowers and cigarette lighters, but now evidently they don’t have to warn patients about the dangerous side effects of drugs.” The plaintiffs will appeal, she said.

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