Rx & The Law
The Pharmacy's Duty For Reducing Errors
by Kenneth R. Baker, B.S.Pharm.,
Vice President, General Counse
Pharmacists Mutual Insurance Company
If a pharmacist
makes a mistake on a prescription, the pharmacist may be held liable for the
injuries caused by the error. Through the legal concept of vicarious
liability, a pharmacy will be liable for damages caused by its employees if
they are acting within the course and scope of their duties for the
the pharmacy have a duty beyond this? Does the pharmacy have an independent
duty to take steps to reduce errors by their employed pharmacists?
According to the
Alabama Supreme Court, the answer is "yes."
The Alabama case arose
out of a pharmacist's mistake, which caused non-permanent injury to a patient.
The patient filed a lawsuit against the pharmacy alleging
the pharmacist was negligent. The patient (plaintiff) filed an additional
count as part of the suit and asked for an extra monetary award to
be paid by the
pharmacy because it had not developed a system to assure that its pharmacists
correctly in the first place. The plaintiff's attorney argued that the pharmacy
owed to its patients a duty to reduce the probability of prescription errors.
the case of Harco Drugs v. Holloway, the pharmacist misread a Tamoxifen
prescription and filled it with Tambocor. The jury found the pharmacist
was negligent and
that the pharmacy was responsible for the resulting injuries. The jury
went further, finding the additional duty on the pharmacy as argued
by the plaintiff's
and awarding the plaintiff punitive damages against the pharmacy owners.
The pharmacy appealed, but the Alabama Supreme Court agreed with the jury
and upheld the punitive damages. In its decision the Court said: "We
note that the jury was also informed of 233 incident reports that had been
Harco employees during the three years preceding the incident. This evidence,
in addition to evidence of complaints filed with the State Board of Pharmacy
and the evidence of lawsuits filed alleging misfilled prescriptions, was
relevant to show Harco’s knowledge of problems, and Harco’s
having failed to initiate sufficient institutional controls over the manner
in which prescriptions
By "institutional controls" the Court was clear
that it was placing upon the pharmacy an additional duty, for which it
could independently be held
liable. That duty requires the pharmacy owner or chain to institute a system
of risk management designed to reduce the number of errors in its pharmacies.
Several boards of pharmacy are now considering a similar position in
order to stem what the boards see as an alarming rise in the number of
errors. When the number of errors reported have caused the boards to
become concerned for the public's safety, some boards of pharmacy have
or chains to institute a plan of quality assurance or risk management.
management calls for a systematic approach to the practice of pharmacy.
Human beings make errors, but a risk management system can be designed
to reduce those errors. A true system of quality assurance goes beyond
to envelop the concept of quality measurement and continuous quality
improvement. No system can eliminate errors, but pharmacy owners would
be wise to begin
exploring the implementation of a quality control program.
discusses general principles of law and risk management. It is
not intended as legal advice. Pharmacists should consult their
insurance companies for specific advice. Pharmacists should be familiar
with the policies and procedures of their employers and insurance