Case against local pharmacy in overdose death will move forward

Supreme Court rejects defence argument

By Lois Ann Dort    
November 28 2018

CANSO – On June 16, 2016 Bernice Bond of Canso died at St. Martha's Regional Hospital in Antigonish after being admitted on May 24, 2016. The medical examiner's report cited the cause of death as “acute overdose of medication”, namely Methotrexate. A month after that report was released, and six months after 90-year-old Mrs. Bond's passing, her son Carlton Bond retained a lawyer and started civil proceedings against the pharmacist who prescribed the Methotrexate, Alexandra Willson, her unnamed assistant (referred to as John/Jane Doe in court documents) and Canso Pharmacy Ltd. under the Fatal Injuries Act.

Counsel for the defendants' challenged the case in the Supreme Court of Nova Scotia upon the grounds that the legal proceeding would have had to be started within one year from when the service was rendered (May 3, 2016), according to section 76 of the Nova Scotia Pharmacy Act.

On Monday, November 19 Justice Joshua M. Arnold ruled that the case against the defendants could proceed. In his decision he wrote, “The result of allowing the Pharmacy Act limitation period to stand would be to deprive the plaintiff of a strong claim due to a short delay in commencing the proceeding, while there is no persuasive evidence of any prejudice to the defendants from allowing the claim to proceed. The limitation period proscribed by the Fatal Injuries Act applies and therefore, the limitation period prescribed in the Pharmacy Act is irrelevant... the limitation defence is disallowed.”

The court ruling issued last week also gave an outline of the history of the case as follows, based on the affidavits and the pleadings, “Before dispensing the prescription, Willson, the defendant pharmacist, found that John/Jane Doe, the unidentified defendant pharmacy assistant, had prepared an incorrect dosage of Methotrexate. The pharmacist assistant packaged the Methotrexate to be taken once daily each week instead of once per week as prescribed. The pharmacist directed the assistant to remove the extra tablets, but did not check the compliance packages before dispensing them. The assistant had again left excessive tablets in the compliance packages.”

Raymond Wagner, lawyer for the Bond family, spoke to The Journal last Thursday about the case. “The problem that arose was that under the Pharmacy Act there is a provision that says to start an action against a pharmacist within one year of the date of the prescription...Under the Fatal Injuries Act it is one year from the date of death. We started and action within one year of the date of death but over the one year from the date of prescription because, as we know, there's a period of time that Mrs. Bond took the medication and then was hospitalized for almost a month before she passed away. There was a difference between those two time limits so the question became: which time limitation should apply? We argued it should be based on the Fatal Injuries Act.” And the court agreed.

Wagner added that the defendants knew of the pending litigation prior to the expiration of the one year limitation under the Pharmacy Act. The court found the action “fair and equitable.”

In addition to trying this case, Wagner says he would like to see the limitation period amended with the current case as an argument for extending the Limitation of Actions Act to include fatal injury claims in Nova Scotia providing a two-year limitation period, as opposed to the one-year limitation currently in place for such claims.

“What the Bond family is very concerned about is that within one year, having to deal with the question of whether you have evidence to support an action, whether you can hire a lawyer, and whether a lawyer will actually pursue and be able to file a case within one year is very problematic. We all know that if you've lost a child, a parent or spouse...that first year every anniversary; Christmas, birthdays...are very traumatic days in the first year and you are focusing on healing and getting better and not questions about whether you should bring a civil action.”

The next steps could proceed down one of two tracks said Wagner. “We'll proceed with litigation. It could move to a settlement track or if it doesn't, we'll take this matter to trial.”

Wagner said that his client is looking for several outcomes from this action, number one being that “pharmacists take a lot more care when filling prescriptions. Because this was a filling error where a high dose of Methotrexate was given to Mrs. Bond that ultimately led to her death.”

There is also, Wagner said, an element of compensation for the client's loss of a mother, grandmother and great-grandmother. “She was very important to her family.”

And finally, the action advocates for all who have lost a loved one, to extend the Fatal Injuries Act limitation period. “So people have an opportunity to grieve without having to deal with such commercial things like starting an action, a piece of civil litigation, when you're still trying to get over the loss of your loved one.”

This matter is still before the court and no allegations have yet been proven in court.