CVS Hit With Second COVID-19 Immunization Lawsuit

I recently wrote about a lawsuit filed against CVS Pharmacy on behalf of 2 children who were mistakenly injected with adult doses of the COVID-19 vaccine rather than the annual flu shot they were expecting to receive. A second case was announced in March 2022, when attorneys filed a lawsuit against CVS Pharmacy and one of its pharmacists after an incident that took place in fall of 2021.

The lawsuit alleges the plaintiff went to a CVS Pharmacy and requested the flu shot, but she was instead injected with Pfizer’s COVID-19 vaccine, which she did not consent to receive.

The attorney for the plaintiff, Joseph Mendelsohn, said he believes “a jury will understand that regardless of their personal stance on this particular vaccine, a pharmacy owes a duty to their customers to safely and competently dispense any type of medication, and no one should be subjected to an injection of any type of medication without their specific consent.”  

However, realistically, it is very unclear whether the plaintiff’s lawsuit will be able to survive a motion to dismiss if it is alleging medical malpractice. For a plaintiff to prove a medical malpractice case, the following elements must be met: a duty owed by the defendant, a breach of that duty, the breach caused injury, and the injury resulted in damages (economic or noneconomic losses).

In a case such as this, duty is assumed and breach can be proven, but unless the plaintiff suffered some actual injury from receiving the wrong shot, she will not be able to win at trial, even though a mistake was made. Mistakes are always made—the question is whether they have caused an injury.