Legal Question in Consumer Law in Tennessee

My Dr. perscribed Topamax and advised me first not to take generic RX. Didn't say why. So, he wrote out the RX. I got it filled. I have gradually increased the dose. Now I am taking 75mg. No real disturbing side effects. But, discovered I was given Topamax from the drug store. Right on the bottle it says -OrgRX after the Dr's name. Even though it hasn't hurt me that I know of right now, would I have reason to pursue a suit against them ?

Asked on 1/09/10, 8:51 am

1 Answer from Attorneys

Timothy Tull Tull Law Firm, PLLC

Well - first I am a pharmacist and a lawyer. I know it is a strange combination. I think you are saying the drug store filled it with a generic. If that is the case - while you might have a case for illegal substitution one would need to see the actual prescription because if the MD signed on the wrong line then generic substitution has been authorized.

With regards to a suit - you are talking about a tort action and one of the elements you would need to prove would be damage. At this point you can not make a case because you cannot prove damages.

I think this goes in the category of life is too short to spend a lot of time on small matters. I do not think you will find an attorney who would take this on a contingency basis so you would be paying out of pocket, the case would probably be expensive and the outcome likely to go against you.

If you came to my office with this fact pattern I would advise you to call the district manager for the pharmacy and lodge your complaint there. You are likely to recover more in the way of free or discounted services that you would ever get in a lawsuit.

Good luck to you ....

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Answered on 1/15/10, 3:15 pm

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