Ethical Lability - Resident

Importance of getting your own insurance

Expanding roles and responsibilities comes with greater lability needs

BOP protects patients, not the pharmacy or pharmacists

Employer coverage does not equate to personal coverage

Pros of advancing scope of practice

Improved access to patient care

Faster treatment

Public health benefits

Leverages pharmacist expertise

Cost Savings

Cons of advancing scope of practice

Liability increases

physician resistance

Training variability

Insurance/payment issues

Examples of advancing scope of practice

Collaborative practice agreements

Prescriber recognition

Independent prescriptive authority

Negligence

Unintentionally causing harm to a patient because of carelessness, inattentiveness, or failure to use appropriate care. Considered a tort meaning it is seen as a civil wrong, not a criminal wrong.

Purpose of malpractice law

Provides financial compensation to patients who are harmed because of negligence

Encourages healthcare professionals to practice safely and avoid careless mistakes

The four elements of negligence are

A duty owed

Breach of duty

Causation

Damages

A duty owed

Pharmacists are expected to exercise a higher degree of care and caution due to the serious risk associated with medications and patients limited understanding of those risks. Pharmacists are held to a no mistakes standard. On average 4 mistakes a day are made.

DeCordova vs State of Colorado

Pharmacist dispensed an overdose leading to permanent damage. The act of making the dispensing error itself was sufficient to establish negligence. The pharmacist argued that human error is unavoidable and therefore should not automatically be deemed as negligent, court rejected.

Outcome of DeCordova V State of Colorado

It emphasized that pharmacists are expected to accurately fill scripts every time and that the error was avoidable. Made it clear pharmacists are not granted leniency for dispensing mistakes the same way that physicians may be for prescribing judgement errors.

A duty owed

Medication Errors

Many med errors occur in a year. Third leading cause of deaths

Breach of duty

Dispensing accuracy is the baseline. Any deviation from the prescriber directions is an automatic breach of duty. Misfills are enough to presume negligence, even without further proof. In broader malpractices cases, breach typically requires showing that a professional standard exist and that the pharmacist failed to meet those standards.

Father Augustine Njuu Vs Mercy Pharmacy Services

Njuu PCP called in a refill for amlodipine. Mercy pharmacy filled lisinopril instead, he had a lisinopril allergy and was hospitalized. Trial found the pharmacist was bypassing required checks for verifying medications to expedite prescription dispensing.

Outcome of Father Augustine Njuu vs Mercy Pharmacy Services

It is the pharmacist’s responsibility to ensure that the dispensed medication matches what was prescribed, and any shortcuts to dispensing accuracy is unacceptable.

Showed breach of duty

Lou V Smith

Doctor prescribed Reglan 1mg, pharmacist changes it to 10 because it was the only strength available. Court said changing the dose without clarification is a breach of duty.

Outcome of Lou vs smith

Never alter a prescription without speaking with the provider

Causation

To prove malpractice the patient must prove that the mistake caused the harm. The courts look at the actual cause (did the pharmacist’s action play a real role in the injury) and the proximate case (was the injury a direct and foreseeable result of the pharmacist’s action)

Cazes V Raisinger

Pharmacist mislabeled a prescription leading to an overdose and eventually patient death. The pharmacist was originally found fully liable for the patient’s death. It was later appealed. Causation was evaluated. Final decision stated that there was no proof that it caused the patient’s death. Pharmacist was only held liable for injuries suffered days after OD.

Cazes v Reisinger outcome

Pharmacist are held liable for any harm that is directly linked to their mistake

Proximate Cause

Limits liability, pharmacist isn’t held responsible for every possible consequence of a mistake, only for foreseeable harms. If something unforeseeable happens, may be considered a superseding cause, cutting off the pharmacist liability

Forseeability

Courts decide how far responsibility extends

Actual damages

Patient focused

Compensation for lost wages, medical bills, or payment for pain, suffering and emotional injury.

Punitive damages

How the pharmacist acted. Meant to punish the pharmacist and deter future misconduct.

Examples of actual damages

Dispensing 10mg instead of 1

Patient incurs 8k in bills and 1,200 in lost wages from missing court

Patient suffers from n/v and is hospitalized

Court can order the pharmacist to pay for those damages

Examples of punitive damages

Covering up a dispensing error

Carelessness that makes mistakes almost certain

Ignoring required procedures

Negligence per se

If a pharmacist breaks a law or regulation and the patient is harmed the court can treat the violation as an automatic proof of negligence. The court can assess if the patient was the person intended to be protected by the law, and if the type of harm suffered the kind the law was meant to prevent.

Izzo vs Manhattan Medical Group

Pharmacy filled a forged CS prescription missing prescriber signature. Violated NY law. Patient died, widow sued for negligence. Pharmacist argued the law was not designed to protect someone committing fraud. Court disagreed saying the law protect the public regardless.

Expanded legal responsibilities

Pharmacists have always been legally required to accurately process prescriptions now they are also expected to improve patient outcomes.

Riff v morgan pharmacy

Patient got suppositories but was not told max use. They suffered a toxic reaction. Pharmacy claimed their duty was only to fill the prescription. Court rejected this view.

Risk management strategies

Double check before dispensing

Clarify unclear orders

Use technology wisely

Follow standard procedures

Educate and counsel patients

Separate look alike/sound alike drugs

Report and learn from errors

Document

Defenses to negligence

Contributory

Comparative

Statue Limitations

Vicarious Liability

Contributory

If patient could have avoided the harm by reasonable care, recovery may be barred

Comparative

Damages are reduced based on how much the patient contributes to the harm

Statue of limitations

How long can someone go back in time to sue for negligence

Vicarious Liability

Employers can be held responsible for negligent acts of their employees

What does malpractice insurance cover?

Dispensing and clinical errors

Negligence in counseling or expanded roles

Legal defense costs and settlements/judgements

What does malpractice insurance not cover

Criminal acts, intention misconducts, cover ups

Actions outside of your legal practice