Rx & The Law
Lack of Pharmacy Management Can Be Expensive
by Donald McGuire,
R.Ph., J.D.
Professional Claims Attorney
Pharmacists Mutual Insurance Company
A recent court decision, Hundley
v. Rite Aid[1], provides two lessons for pharmacists
and their employers. Seven-year-old Gabrielle Hundley was
diagnosed with Attention Deficit Hyperactivity Disorder and was
prescribed
Ritalin. The
prescription was accidentally filled with Glynase 6mg instead of Ritalin. After
2 doses of Glynase, the child lost consciousness and was transported to the
hospital in a hypoglycemic coma. The child’s physicians discovered
the cause of the hypoglycemia, but not before she suffered permanent brain
damage. The
parents filed suit on behalf of their daughter on March 23, 1995.
While there
are a number of complex legal issues involving experts, evidence, procedure,
and damages in this case, this article will focus on the lessons
to be learned from the pharmacy issues of the case. The first lesson
is how not to handle a dispensing error. An article in Pharmacists
Mutual’s
Risk Management in Pharmacy newsletter advises pharmacists to own up to obvious
mistakes: “Above all, be honest. Patients will usually
forgive a human error, but not a cover-up.” [2]
The
Hundleys served interrogatories and requests for production of documents
on July 14, 1995. The interrogatories went unanswered. Three
and a half months later, the Hundleys filed a motion to compel Rite Aid to
respond. Rite
Aid agreed to respond prior to the court’s order to do so, but failed
to follow through with that promise. Partial answers were finally delivered
in January and February of 1996. Two further requests for information
were presented to Rite Aid and went unanswered. The court ordered full
compliance with all requests by May 15, 1996 or a default judgment would
be entered against
Rite Aid.
When the answer was finally given, Rite Aid stated that the
computer data and other records required by law could not be located and
that the pharmacy
had
not dispensed any Glynase 6mg during the 3 month period surrounding this
incident. In
July 1996, the court again ordered Rite Aid to produce this information
by August 16, 1996 or again face a default judgment. The missing
computer records were finally located and they indicated that Glynase had
in fact
been dispensed
by this pharmacy during the time in question and for the same quantity
and strength that had been received by Mrs. Hundley. The prescriptions
themselves were also produced although the Ritalin prescription and the
Glynase prescription
were still missing. The court had this to say about the records produced:
Now, over a period of more than a year since this case was filed,
documents and materials which have been exclusively in the possession,
custody and
control of Defendant are surfacing which appear to make it highly likely
that the claimed
mis-fill did occur and give some indication as to how it occurred. Rather
than come forward with all such information and evidence in the ordinary
course of discovery, Defendant took the path of concealment and obstructed
Plaintiffs’ attempts
to ascertain the truth.[3]
For its conduct from March 1995 through
August 1996, the court charged Rite Aid with over $40,000 in fines,
attorney fees and costs for discovery
abuses.
The second lesson of this case is for pharmacy managers. Management
needs to take a more active role in overseeing the quality of its
professional activities
to ensure that the safety of the pharmacy’s patients is being
adequately protected. At the eventual trial, evidence was presented
that Rite Aid had no policies or procedures designed to ensure the
competence of its pharmacists. Also,
Rite Aid had no policies or procedures regarding the filling and
labeling of prescriptions or the storage and handling of drugs in
the pharmacy. All
of these issues were left to the judgment of the pharmacists working
at that store. The pharmacy had no system in place for risk
management or for quality assurance.
The jury awarded Gabrielle
$5 million in actual damages and $10 million in punitive damages. The
jury also awarded her parents $20,000 in actual damages and $1
million in punitive damages. Punitive damages are awarded
in a trial to punish a defendant for willful or wanton misconduct. Because
of the evidence presented at trial regarding the lack of policies
and procedures,
the appellate court allowed the punitive damages to stand.
[1] Hundley v. Rite Aid of So. Car., Inc., 2000 WL 225531 (SC App.,
Feb. 28, 2000)
[2] Volume 7, Number 2, Winter 1998-1999
[3] Hundley at page *9. |