Rx & The Law

The Price of Professionalism

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

The changes taking place in the profession of pharmacy are best illustrated by the changes in state laws redefining the practice of pharmacy. An example is the amended statute in the state of Minnesota, passed this year, redefining the "Practice of Pharmacy" in Minnesota. The law demonstrates the new duties and expanded roles of pharmacists.
Among the duties of pharmacists in Minnesota the law provides that the practice of pharmacy means:

3 . . . the participation in clinical interpretations and monitoring of drug therapy for assurance of safe and effective use of drugs.
4 . . . drug administration for first dosage and medical emergencies;
5. participation in the practice of managing drug therapy and modifying drug therapy . . . on a case-by-case basis according to a written protocol between the specific pharmacist and the individual dentist, optometrist, physician, podiatrist, or veterinarian . . .;

An interesting factor in the changes in Minnesota, and similar changes that are taking place in many states, is that the changes are being initiated and "pushed through" the legislatures by pharmacists. Pharmacists are not only accepting new duties and new responsibilities, they are insisting on them.
Many pharmacists are now looking at these changes and asking, "Does this mean I will have more liability? Will I be open to new lawsuits on new theories of pharmacist duties and negligence?" The answer to both questions is, "Yes." For each advance we as pharmacists make, we pay a price. The price, however, is a bargain. Increased liability is the price of professionalism.
The law of negligence is exacting in its requirements. In order to prove a person is negligent, the plaintiff (patient) must show:

1. that the defendant (pharmacist) had a duty to the specific plaintiff (patient); and
1. that the defendant failed in performing that duty; and
2. that the plaintiff was injured; and
3. that the plaintiff’s injuries were proximately caused by the defendant’s failure of duty (negligence).

If pharmacists have more duties, they have more responsibilities. A part of responsibilities are legal responsibilities. Legal responsibilities are enforced through the courts by way of the law of negligence. Expansion of duties causes expansion of liability.

While no professional welcomes new liabilities and more areas of potential lawsuits, neither do professionals shirk the responsibilities to their patients that may naturally flow from their knowledge and expertise. Patients need pharmacists to take on additional jobs. Pharmacists need to apply their knowledge learned in five to six years of professional education. Pharmacy laws are expanding, not just because pharmacists want them to expand, but because the need exists.

Untold millions of dollars and hours of suffering and years of added productive lives can be saved by pharmacists performing these new duties. Legislatures across the country are handing pharmacists the legal tools they need to benefit patients. It is now up to pharmacists to seize these new opportunities, not only to benefit patients, but also to benefit themselves as professional pharmacists.

Pharmacists are becoming increasingly frustrated by the workload thrust upon them by increased numbers of prescriptions which need to be dispensed. This is a necessary part of serving patients. Just as lawyers learned to use para-legals, pharmacists and pharmacy managers need to find new ways to delegate many of the dispensing functions to trained pharmacy technicians in order to free pharmacists and explore the economic and professional possibilities allowed by these new laws.

Pharmacists will continue to be responsible for correct dispensing. Because pharmacists have, and should have, final check authority for any prescription, they can not completely relinquish this important function. New duties, however, are the future of pharmacy. If pharmacists are not willing to accept these new duties and resultant responsibilities, others will, and pharmacists’ future will be jeopardized.

Duty and liability are a part of the price of professionalism. As pharmacists we should not retreat from these areas, we should embrace them.

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.