Rx & The Law

When Bad Things Happen — Be Prepared

by Kenneth R. Baker, B.S.Pharm., J.D.
Vice President, General Counsel
Pharmacists Mutual Insurance Company

According to a Gallup poll, pharmacists are the most trusted professionals in the nation. This can be a double-edged sword. If pharmacists disappoint their patients, the likelihood of a lawsuit may increase because the patient placed so much faith in their pharmacist. "To err is human", but when the mistake is compounded by the manner in which a pharmacist handles a situation, the result can be even worse. Whether or not the pharmacists acted properly when the mistake was brought to their attention in this 1996 case we do not know, since this ruling only involves the plaintiff’s allegations. Whether the pharmacists actions, even if as alleged, would have made a difference, we can only speculate. This case, however, serves as a warning to pharmacists to consider what they would do if they discovered they made a mistake.

The case of Polio v. Derby Center CVS was presented to the Court on a motion by the defendants to strike parts of the complaint dealing with the parent’s emotional distress. Of interest are the allegations (unproven at the time of this ruling) by the plaintiffs and what pharmacists can learn from those allegations.

The parents of a child allege the pharmacy negligently filled the child’s prescription and this caused the child, Dennis, "physical harm, discomfort, embarrassment and emotional distress." The unusual part of the parents’ complaint asks for additional damages for failing to identify the incorrect drug when asked, and for "failing to render assistance" to the parents "upon learning of their mistake and the physical and emotional harm caused to their son."

As pharmacists, if we make a mistake, harm to our patients can result. No pharmacist is immune to the possibility of an error. There are risk management steps we can take to avoid mistakes, but no risk management program can completely eliminate them. Pharmacists can, however, learn to handle mistakes when they happen in a manner that does not cause further harm.

Insurance companies too often stress "never admit you are negligent." This may be sound advise when dealing with an automobile accident, but a professional liability case is different. When confronted with an obvious error, the first rule should be "care for the patient". If the pharmacist discovers an error, the pharmacist should first alert the patient to stop taking the incorrect prescription. If the patient is contacted soon enough, further harm may be avoided. The physician must be contacted because a physician treating a patient must know what medication the patient has been taking, even if it is wrong.

Regardless of how many patients are waiting, a pharmacist confronted with a patient who indicates their prescription may be wrong, needs to handle the situation immediately. If there is an error, the pharmacist must identify what and how often the patient took the medication.

If a patient calls the pharmacy with a question as to whether the prescription is wrong, the first thought of the clerk, technician or pharmacist answering the phone may be, "it’s just a generic." Claims have resulted which could have been prevented if this answer had not been given. The rule should be, "assume it is an error, until proven to be correct." A clerk or technician should not handle this type of call. It must always be given to the pharmacist.

If there is an error, the patient should not be unduly alarmed, but the pharmacist should not make excuses. Telling a patient, "This happens sometimes" is not reassuring. A concerned attitude is a must, even if the patient is wrong.

If the pharmacist discovers an obvious error, there is nothing wrong with saying, "I am sorry." An obvious error will be easily proved, and an "I am sorry" may help. The pharmacist cannot, however, make comments about which he or she has insufficient information.

It is a good idea to try to get back an incorrect prescription in order to avoid any further accidental ingestion of the medication. If the patient refuses to return the incorrect medication, however, the pharmacist usually cannot insist that the patient "hand it over". The pharmacist should caution the patient to tape the bottle closed, mark the bottle so no one else will take it, and keep the bottle in a safe place. Later, when the matter has been settled, the incorrect prescription can be retrieved and destroyed.

Pharmacists should consider what to do if an error is discovered rather than leaving decisions to be made at a time of stress. Such matters should be discussed with co-workers and employers before they happen.

This article discusses general principles of law and risk management. It is not intended as legal advice. Pharmacists should consult their own attorneys and insurance companies for specific advice. Pharmacists should be familiar with the policies and procedures of their employers and insurance companies, and act accordingly.