“Common Knowledge” Rule Found to Apply
On April 21, 2008, the NJ Appellate Division published a decision involving a Walgreen’s pharmacist who filled a patient’s prescription incorrectly: in Bender v. Walgreen Eastern Co. Inc., the pharmacist was asked to fill a prescription for “Primidone” but mistakenly gave the patient a prescription for “Prednisone” – a steroid. Apparently, the patient took the steroids that were provided and suffered injuries.
Normally, in a malpractice case against a pharmacy or pharmacist, an Affidavit of Merit of a licensed pharmacist is required so that the case can move forward. The failure to timely serve an appropriate Affidavit of Merit can be fatal to the case, and, can result in the case being dismissed.
However, in Bender, the Court, finding the pharmacist’s error was akin to a dentist pulling out the wrong tooth, ruled that giving a patient the wrong medication, as was done by the Walgreen’s pharmacist, is such an obvious error that the “common knowledge” doctrine would apply. In other words, no expert was needed to explain that giving the wrong medication was an error, as such a blunder would be something that jurors could figure out without the need for expert testimony. Relying, therefore, on Hubbard v. Reed, 168 NJ 387 (2001), the Court ruled that since there was no need for expert testimony on the issue of the pharmacy’s negligence, there was also no requirement that an Affidavit of Merit be provided.
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