SA Pharmacists in Generic Liability Dilemma

March 3 - The new Medicines Act in South Africa has compounded a problem faced by many of the country's pharmacists. On the one hand, these professionals are forced to supply generic versions of more expensive brands of medication or risk jail time. On the other hand, Section 22 of the Medicines Act states that if the pharmacist made the wrong decision and dispensed an incorrect generic brand, he or she faces negligence charges.

"There is no doubt that the advent of generic substitution has exposed the pharmacist to a greater degree of liability in terms of fulfilling his or her legal duties," said an expert on the subject of healthcare, Neil Kirby. "The risks and dangers are amplified because the pharmacist is obliged to override certain medicine related decisions made by other healthcare practitioners. For this reason, the pharmacist's decisions are very keenly watched by the law and the healthcare community."

Kirby said that South African pharmacists are particularly wary of Section 22 which makes it an offence to make the wrong generic dispensing decisions.

"Firstly, if the law requires it, the pharmacist is duty bound to override the decision of the prescribing practitioner by dispensing a generic substitute for a branded product," said Kirby. "Secondly, the pharmacist has no clear guidance as to how to proceed in order to avoid liability if things go wrong."

Kirby noted that pharmacists could face up to 10 years in prison if they did not offer cheaper brands.

But what happens if things go wrong? Kirby says that if the patient suffers harm because of the pharmacist's decision, "the question then arises as to whether the pharmacist could be liable for damages."

"A pharmacist may be required to pay a significant amount of damages to a patient who is harmed by the negligent generic substitution of a medicine," explained Kirby.