Rx & The Law

Spoliation of Evidence

by Don R. McGuire, Jr., R.Ph., J.D.
General Counsel
Pharmacists Mutual Insurance Company

As a pharmacist, you are aware that if you dispense an incorrect medication, you must take care of the patient.  This normally includes apologizing for the error, correcting the mistake, and contacting the patient’s physician.  These are all important, but you may forget that you also need to take care of yourself. If a patient receives an incorrect medication, there is always a chance they could sue you.  That is why it is so important to gather and preserve all relevant information about that incident.

The best thing you can do after a dispensing error has occurred is to thoroughly document the situation. It is recommended that you record the following: how the error occurred, the date the error occurred, the date the error was discovered by the patient, the date the error was brought to the pharmacy’s attention, the amount of doses the patient believes they ingested, the amount of doses returned to the pharmacy, and the names of anyone you spoke to while resolving the issue. Document all conversations with the patient or the caregiver.  Don’t use an abbreviated form of documentation.  Use complete words and sentences.  It may be easy for you to recall all of the details now, but it could be a year or more before a lawsuit is filed. After filling thousands of prescriptions and handling other problems, it may be impossible for you to remember anything about that specific incident. To be safe, all documentation should allow a party who was not involved to fully understand the situation. 

It is worth mentioning a second time to document the amount of doses the patient brought back to the pharmacy and preserve the physical evidence. Too often a pharmacist will verify the patient received the incorrect prescription and then dispose of the medication. They have just disposed of a valuable piece of evidence.  The number of doses returned to the pharmacy can help establish the maximum number of doses the patient could have ingested. At any time in the future, if the patient claims they took a specific quantity of capsules/tablets, you will be able to confirm or deny this claim with your documentation and the returned prescription vial.  Count the tablets and save the bottle.  Treat this as evidence by placing it in an envelope and sealing it with your initials on the closure.

The production of evidence in litigation is governed by the Rules of Civil Procedure.  The rules require a party to preserve evidence in a number of situations.  It could be in situations of actual pending litigation or when a party is put on notice of a potential claim.  It is also a requirement to keep evidence if a party reasonably anticipates that the information might be needed for future reference.  As you can see, the requirement to preserve evidence is broad.  It can be argued that a patient returning to the pharmacy with incorrect medication that resulted in an injury creates a situation where litigation is reasonably foreseeable.  The best practice is to assume this is true and preserve the evidence.

Spoliation is the destruction or significant alteration of evidence in a case.  What happens if you don’t preserve evidence? The rules also provide the sanctions available when spoliation occurs.  These sanctions run the gamut from reprimands, findings of contempt, up to dismissal of a case.  Generally, it will take an egregious violation for a court to dismiss or default a case, so it is not very common.

However, it is more common for the court to allow the jury to make a negative inference from the spoliation of evidence.  That is, the jury is allowed to presume that the evidence destroyed was more likely injurious to the destroying party’s case than it was likely beneficial to their case.  This is really a common sense application.  People are not likely to destroy things that will be helpful to them.  This, of course, is not true in all cases, but what is a jury to do if the evidence is destroyed?  The returned prescription might have proven your case, but if you disposed of it, the court will give the jury the spoliation instruction.  This instruction can be very damaging to your case and may result in a significant verdict against the destroying party.

The bottom line is you should be able to reproduce or recall details in the future that you would have been able to answer the day the patient presented with the error. If you destroy, dispose of, or do not record some piece of evidence, it could have severe consequences.  All of this documentation and preservation is in your best interest. Protect yourself, be complete.

.  For convenience in this article, we will use the Federal Rules of Civil Procedure as the reference.  Each state court has its own rules which may vary from the Federal Rules.