PHILADELPHIA – CVS Pharmacy has denied allegations that it improperly and incorrectly prescribed medication to one of its customers - an Upper Darby woman who says she suffered adverse reactions as a result.
Roslyn Hawkins of Upper Darby initially filed suit in the Philadelphia County Court of Common Pleas on Aug. 21 versus CVS Pharmacy, Inc. and CVS Health Corporation, both of Woonsocket, R.I.
“At all material times, CVS Pharmacy, Inc. and CVS Health Corporation were acting by and through their agents, ostensible agents, representatives, servants and/or employees in the negligent manner as set forth specifically herein. At all material times, CVS Pharmacy, Inc. and CVS Health Corporation held themselves to the public generally and to plaintiffs specifically as competent to provide pharmaceutical services and/or medical care,” the suit says.
“Plaintiffs looked to CVS Pharmacy, Inc. and CVS Health Corporation as competent to provide these services and to provide pharmaceutical services in an appropriate and proper manner. Those medical and pharmacological personnel who dispensed medication to plaintiff Roslyn Hawkins on or about May 8, 2022 and who had the duty to properly dispense the prescribed medicine. Additionally, once it was learned that the pharmacy had not dispensed the correct dosage, the pharmacy should have properly and promptly notified plaintiff that the dispensed medication was improperly dispensed.”
The suit adds that on May 5, 2022, CVS Pharmacy in Drexel Hill called Hawkins and informed her that her prescription for Lamotrigine, which she had been prescribed for the last four years, was delayed.
“On or about May 8, 2022, the CVS Pharmacy contacted Hawkins and told her that her prescription was ready. On or about May 8, 2022, plaintiff arrived at the CVS pharmacist which is located at 802 Lansdowne Avenue, Drexel Hill, PA 19026 and was told that her prescription was not ready, however, the pharmacist gave her a few pills to hold her over until the full prescription was ready. The pills given to plaintiff by the CVS Pharmacist were in fact Topamax 200mg instead of Lamotrigine. On or about May 8, 2022, in response to plaintiff Hawkins’ request for this prescription of Lamotrigine tablet as prescribed, a pharmacist and/or pharmacy personnel located at CVS Pharmacy negligently, irresponsibly and/or recklessly prepared and mistakenly dispensed the wrong dosage medications; specifically 200 mg dosage of Topamax, which was not what plaintiff’s treating physician prescribed and should not have been dispensed to plaintiff by CVS Pharmacy, Inc. and CVS Health Corporation,” the suit states.
“Plaintiff mistakenly believed that she was given the correct medication, trusting that the pharmacist would not give her drugs that were not prescribed to her. On or about May 9, 2022, plaintiff began taking the incorrectly dispensed medication, taking two pills totaling 400 mg of Topamax, and felt numbness and tingling in her hands, was unable to speak properly, felt dizzy, felt a heaviness in her body, and experienced problems with her vision. Due to the seriousness of her symptoms, plaintiff went to Urgent Care in Upper Darby, and from urgent care, was transported to Delaware County Memorial Hospital in Upper Darby, PA. As a result of ingesting medication improperly dispensed medication, plaintiff was caused to experience mental fogginess, dizziness, a feeling that resembled being drunk, slurred speech, tingling in the hands and feet, numbness in her right hand and great anxiety.”
Due to the alleged failure of CVS Pharmacy, Inc. and CVS Health Corporation in improperly dispensing medications, the plaintiff and has suffered “irreversible and permanent bodily damage and injuries including, but not limited to, high levels of stress, panic attacks, hypersensitivity to unfamiliar body sensations, extreme sweating upon entering any pharmacy.”
CVS looked to remove the case to the U.S. District Court for the Eastern District of Pennsylvania on Sept. 20, citing both diversity of citizenship between the parties and claimed damages in excess of $75,000.
The following day, CVS answered the complaint and denied its substantive allegations as conclusions of law to which no official response was required, before providing affirmative defenses on its own behalf.
“Plaintiff’s claims may be barred by the Doctrine of Contributory Negligence, based on the actions of plaintiff and/or plaintiff’s minor. Plaintiff’s claims may be barred or reduced by the provisions of the Pennsylvania Comparative Negligence Act, the relevant portions of which are incorporated herein by reference as though same were more fully set forth at length herein. Plaintiff and/or plaintiff’s minor failed to mitigate any damages allegedly sustained,” per the company’s answer.
“Pennsylvania Rule of Civil Procedure 238 should be deemed unconstitutional, as a violation of the Due Process and the Equal Protection clauses of the 14th Amendment of the United States Constitution, as well as Article I, Sections 1 and 11 and Article 5, Section 10(c) of the Pennsylvania Constitution. In accordance with Pennsylvania Rule of Civil Procedure 238, answering defendant is not required to pay delay damages during those time periods in which plaintiff’s conduct delayed the trial. Moreover, delay damages may be further reduced in accordance with Pennsylvania law. Plaintiff’s claims may be barred in whole or in part by the Medical Care Availability and Reduction of Error Act and/or the Health Care Services Malpractice Act. All provisions of the MCARE Act which are applicable to this case, including but not limited to Section 508(b)(a) (regarding collateral source and preclusion of recovery for paid, past medical bills) and Section 510 (regarding reduction to present value) are hereby pled.”
For counts of medical negligence/pharmaceutical malpractice, corporate negligence, the plaintiff is seeking damages, individually, jointly, severally and vicariously, in excess of $50,000, plus interest, delay damages, punitive damages and costs of suit.
The plaintiff is represented by Theodore Charles Levy of Fine & Staud, in Philadelphia.
The defendants are represented by Albert Bryan Tomlinson, Amalia V. Romanowicz and Raymond Edward Escobar of Post & Schell, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-03659
Philadelphia County Court of Common Pleas case 230802158
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com