Rx & The Law

"Sweat The Details"

by Donald McGuire, R.Ph., J.D.
Professional Claims Attorney
Pharmacists Mutual Insurance Company

While self-help books may advise a person to not sweat the small stuff, this same advice is not necessarily good advice for the pharmacist.

Jerry Austermiller transferred his Coumadin prescription.  The receiving pharmacist accidentally dated the prescription, written on March 11, 1996, with the date of the transfer, December 26, 1996. The prescription was filled twice after its true expiration date.  Mr. Austermiller later died from the effects of the Coumadin.^[1] 

Mrs. Johnson presented her prescription for Tavist D to the pharmacist at Sell Lower Pharmacy.  Unfortunately, the state prescription program would not pay for Tavist D.  The pharmacist was permitted by law to automatically substitute another product.  The pharmacist wrote this new order on a telephoned prescription blank and threw the original written prescription away.  The patient was later injured and when the claim was investigated, the physician denied ever ordering the Tavist D or the substitute.  

Ron had dispensed phentermine made by ABC Pharmaceuticals for a number of years.  During one short period, Ron had to buy XYZ Drugs’ brand of phentermine due to a supply problem.  Ron figured it was only for a short time and it was a lot of work to update the computer when he was only going to change it back again in a few weeks.  Mrs. Hitchcock’s prescription was filled with the XYZ phentermine, but the computer profile indicated that it was filled with ABC’s version.  Later, ABC Pharmaceuticals was embroiled in a series of scandals and patients had alleged that ABC’s phentermine was unsafe.  Three years later, Ron was served with a lawsuit filed by Mrs. Hitchcock suing both him and ABC Pharmaceuticals.

The common theme to all of these scenarios is record keeping.  Record keeping is not the most glamorous function performed in the pharmacy, but it is vital.  Documentation of the pharmacist’s professional activities is absolutely necessary.  Luckily, the vast majority of records created are never reviewed again.  However, this creates a feeling of “I’m wasting my time” and tempts the pharmacist to skip over the details.

Let us examine our examples as if the record keeping had been accurately completed.  In Austermiller, the final two refills would not have been filled had the correct expiration date been placed on the prescription.  The pharmacy would not have been embroiled in the lawsuit (they ultimately settled) and Mr. Austermiller may be alive today.

If the pharmacist had drawn a line through the Tavist D and written his change, “per state formulary”, on the prescription blank, the pharmacist would have ready proof that the physician did in fact prescribe the Tavist D.  This would have been invaluable in resolving the patient’s claim.

Proper documentation of the manufacturer’s product being dispensed would have helped Ron obtain a dismissal in the case when he had not dispensed ABC’s phentermine to this patient.  However, this highlights the two-edged sword of documentation.  Had Ron kept accurate records of which phentermine brand was dispensed, those records would clearly indicate the instances in which ABC’s product was dispensed.  Pharmacy practice has enough risk without exposing ourselves to unwarranted and undeserved lawsuits.  Accurate record keeping will limit exposure to those risks that may be warranted. 

In addition to these liability concerns, pharmacists are generally charged by their state boards of pharmacy with the duty to keep accurate records.  Failure to do so may expose the pharmacist to sanction by the state board.  Also, audits of prescription files by third party carriers that uncover inaccurate records could result in a demand for repayment.  Many times these have been substantial demands.

Record keeping is an important, if not always exciting, part of pharmacy practice.  Proper records can limit liability exposure, protect the pharmacist’s professional standing, and limit exposure in third part audits.  It is also the right thing to do.  Sweat the details.

[1].) Austermiller v. Dosick, et al., 2001 WL 1664104 (Ohio App. 6 Dist.) December 31, 2001

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.