Can You Sue a Pharmacy for Medication Errors?
The short answer is yes, you can sue a pharmacy for medication errors under the right circumstances. Pharmacists are medical professionals who take people’s lives into their hands when they fill a prescription. Sometimes, however, a medication error is the fault of a third party such as a doctor. Below is a description of the basics of pharmacy negligence claims.
Types of medication errors involving pharmacies
Pharmacy negligence is a form of medical malpractice. Below is a list of some of the root causes of medication errors.
Misprescribing
Since it is the doctor’s job to prescribe medication, a misprescription error would not lead to a claim against the pharmacy. Instead, you would need to file a malpractice claim against the doctor.
Dispensing errors
Can you sue the pharmacy for wrong dosage? That depends. Did the doctor prescribe the wrong dosage? Check the prescription. If the doctor prescribed the wrong dosage, you may not have a strong case against the pharmacy for following the doctor’s instructions. On the other hand, if the pharmacy dispensed the wrong dosage, you may be able to hold the pharmacy liable for malpractice if the error harmed you.
Failure to warn
A pharmacy has a duty to warn patients about potential side effects, drug interactions, or allergic reactions to medications, particularly if it is aware of a patient’s medical history. If a pharmacist fails to provide clear and adequate warnings, and this oversight leads to patient harm, the pharmacy may be held liable for negligence. This duty is especially critical when the patient has a known allergy or is on other medications that could interact. However, the extent of this duty can vary in Ohio and Kentucky, so it’s important to explain the situation to your lawyer.
Negligent prescription review
A pharmacist should carefully review every prescription before filling it—despite doctors’ notoriously bad handwriting. Fault might be shared if illegible handwriting combined with negligent prescription review caused a medication error. This problem is less acute than it once was because of the decline in the use of handwriting.
Faulty record-keeping
Pharmacies are required to maintain patient profiles, including known drug allergies and medication histories, in accordance with state pharmacy board regulations. It should keep a record of each patient’s known drug allergies, for example. This is another error that either a doctor or a pharmacist can commit. Dispensing medication that triggers an allergic reaction can kill.
Causes of medication errors
To err is human, or so it is said, and human error directly results in many medication errors. Here are some of the most common:
- Miscommunication: A pharmacist or an assistant might understand the name of a medicine–Celebrex vs. Cerebyx, for example.
- Fatigue: Overwork is dangerous to the pharmacist, potentially deadly to the patient.
- Distractions and multitasking: Studies have shown that multitasking causes you to perform every task worse. It still happens frequently at pharmacies, however.
- Failure to verify patient information: Not double-checking allergies, existing medications, or health conditions can lead to harmful drug interactions or contraindications.
- Incorrect dosage calculation: Some math may be involved when filling prescriptions.
A full list of human errors might include hundreds of items.
How to sue a pharmacy
To sue a pharmacy you need to formulate your case, draft and submit a formal complaint, and deliver the complaint and the summons through a neutral third party (“service of process”). To avoid dismissal of your claim, you are going to need to present a plausible case for the presence of four facts—duty of care, breach of duty, causation, and damages.
Duty of care
Naturally, a pharmacy has a duty of care towards its customers. But what is the exact nature of that duty of care? Although the specifics vary from case to case, the common thread is that a pharmacist must act with reasonable professional competence. They don’t have to exercise the competence of the average pharmacist–that could leave 50% of all pharmacists liable. Nevertheless, they do have to adhere to minimum professional standards of competence.
Breach of duty
A pharmacy breaches its duty when it fails to meet minimum standards of competency. It either does something it should not have done, or it fails to do something it should have done–dispensing Xanax instead of Zantac, for example. Any breach of professional duty constitutes negligence, but negligence alone is not enough to win a claim. You also need causation and damages.
Causation
No matter how serious the pharmacy’s negligence, no personal injury or wrongful death claim arises unless it actually caused the malady that the victim is complaining about. Ohio and Kentucky law recognize two forms of causation—actual cause and proximate cause.
Actual cause
The actual cause is a “but for” cause. If you can honestly say that but for the pharmacy’s negligence the victim would not have suffered the harm they are complaining of, actual cause is present.
Proximate cause
Proximate cause is foreseeable. A freak accident cannot support a pharmacy malpractice claim—there must be a close relationship between the negligence and the harm the victim suffered.
Damages
The victim must have suffered losses that the law can compensate for. That might mean medical expenses, pain and suffering, lost earnings, etc. Neither Ohio nor Kentucky law will compensate for pure emotional distress or anxiety without accompanying physical injury or a diagnosable psychological harm.
The use of expert witnesses
The use of expert witnesses is routine and often critical in pharmacy malpractice cases. Expert testimony is particularly useful in defining the standard of care under particular circumstances, and in determining whether the defendant breached the standard of care.
Pharmacy employees and respondeat superior
Respondeat superior, Latin for “Let the master answer,” is a legal standard that allows you to sue an employer for the wrongdoing of their employee. If you have a large claim, an individual pharmacy employee might not be able to pay it. Walgreens or CVS can certainly afford to pay for it, however.
Should you sue or settle?
Many victims and defendants can agree on one thing—it’s better to settle a medical malpractice claim than to go to trial. If negotiations stall, however, filing a lawsuit might be a way to get things moving again. Filing a lawsuit gives both parties access to the powerful pretrial discovery process.
Once you gather evidence through pretrial discovery, you will probably be able to negotiate a settlement long before your trial date.
Seek legal assistance at your earliest convenience
Both Ohio and Kentucky apply strict statutes of limitations that will prevent you from filing a claim if you wait too long. In Kentucky, that statute only allows you one year. Ohio gives just two for personal injury claims, and one for medical malpractice. Although exceptions allow you to file later in some cases, your best bet is to contact an experienced medical malpractice lawyer as soon as you can. Crandall & Pera are medical malpractice/personal injury lawyers who serve Ohio and Kentucky, and they are ready to lace up their gloves for you.