September 25, 2020

Contact:Eric W. Boyer, Esq.
Managing Partner
305.670.1101 Ext. 1023


Wrongful Death/Pharmacy Negligence – Prescription Opioids Addiction Overdose

Thomas A. Valdez

Thomas A. Valdez

Todd Michael Smayda

Todd Michael Smayda

QPWB Tampa trial lawyers, Todd M. Smayda and Thomas A. Valdez, defended an independently owned pharmacy against negligence claims arising out of plaintiff’s overdose and death from Oxycodone and Xanax.  The prescriptions dispensed by the client pharmacy had been written by the plaintiff’s physicians and filled as prescribed. The plaintiff’s estate sought to hold the pharmacy liable for dispensing legally prescribed pain pills to the plaintiff, who, unbeknownst to the pharmacists, was addicted.  The plaintiff also sued four of his prescribing physicians, the medical clinic where he received treatment, and another national chain pharmacy for medical negligence and pharmacy negligence. Each physician and the co-defendant pharmacy had moved for summary judgment and each had been denied.

The core issue in the client’s defense was whether or not the prescriptions presented to the client’s pharmacists were “unreasonable on their face,” the current standard in Florida for pharmacy malpractice cases. The defense relied heavily on the deposition of plaintiff’s expert.  Examination of the expert concluded that even by the opposing expert’s standards, the client pharmacy had addressed any red flags suggested by the prescriptions and resolved them to determine that prescriptions were reasonable to dispense.  The plaintiff attempted to use affidavits of three physicians-experts to claim the prescriptions were unreasonable for a pharmacist to fill, but the defense successfully argued those affidavits should be stricken from consideration.  The defense won summary judgment, the only party to do so, and the plaintiff appealed the victory to the Florida Second District Court of Appeal.

On appeal, the defense countered the plaintiff’s arguments that the summary judgment should be overturned because the summary judgment evidence created genuine issues of material fact. Plaintiff contended the client’s evidence relied upon by the trial court was not reliable, it should have been stricken from consideration, and that the affidavits of its expert physicians should not have been stricken.  The defense successfully argued the reliability of the client’s summary judgment evidence and its conformity to Florida’s summary judgment standard. Further, the defense argued the important difference between a pharmacist’s standard of care and a physician’s standard of care in order to maintain that the plaintiff’s physician-expert affidavits were appropriately stricken from consideration by the trial court.

After oral argument requested by the plaintiff, the Florida Second District Court of Appeal affirmed the summary judgment.

# # #

Olivia M. Mejido

Mr. Smayda authored an article “Caught in the Middle: A Pharmacist’s Duty of Due and Proper Care” published in The Trial Advocate, a quarterly publication of The Florida Defense Lawyers Association. The article details the pitfalls for retail pharmacists filling pain pill prescriptions in the time of an opioid crisis and vague state of the law that allows for easy lawsuits against them.

Todd M. Smayda, a partner in the Tampa office, has a 20-plus-year history defending negligence claims throughout Florida.  He focuses in the areas of medical and nursing malpractice, pharmacy negligence, construction claims, and general liability defense; in these areas, he has obtained several trial victories on Motion for Summary Judgment. Mr. Smayda received his law degree from Nova Southeastern University Shepard Broad Law Center in 1998.

Thomas A. Valdez is a partner in the Tampa office and serves as Chair of the firm’s Appellate Practice Group which provides clients with both traditional appellate services and proactive trial support services before, during and after trial.  Although his practice is mainly focused on appellate practice, he also devotes his time to defending long term care, medical malpractice, general liability, commercial and construction claims. Mr. Valdez received his law degree from Florida State University College of Law in 1997. He is licensed to practice law in Florida and Pennsylvania.

About QPWB

Quintairos, Prieto, Wood & Boyer, P.A., is the largest minority and women owned law firm in the nation with 24 offices in the U.S. and abroad across a spectrum of industries in over 40 areas of practice. Our lawyers provide representation in litigation, business, real estate and governmental law.

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