In 36 states, a pharmacist's apology will not be construed as an admission of liability. In the other states, it's a different story.
A pharmacist I will call Sam had made a mistake, a prescription error. Like most claims against pharmacists, Sam’s mistake was a mechanical error; he had filled a prescription with the wrong drug.1
Sam called me because, at that time, I was the General Counsel at Pharmacists Mutual Insurance Company and the head of the company’s professional liability claims department. He said, “It was stupid. I filled the prescription myself and I am the one who made the mistake. I don’t know how I could have done that.”
Sam then told me one other thing. Before he called me, he had called his patient. He told her what he had done and told her to quit taking the wrong medicine immediately. Sam said to his patient, “I am sorry, I made a mistake.” He then filled the prescription correctly; refunded the money previously paid; and did not charge her for the corrected prescription. He also called the patient’s physician and confessed again so their records would be complete. As it eventually turned out, the patient was not injured and no claim was made against Sam or the pharmacy.
Sam said to me, “I probably should have called you first, before I admitted liability.” In every insurance policy there is a clause stipulating that the policyholder must not admit liability.
I told Sam that a year earlier, the insurance company had send a letter to every professional liability policyholder, saying that the admission of an obvious error with a statement of apology is not considered a violation of our “no admission of liability clause.”
Not every insurance company or every pharmacy chain will take the same position, but today many do. Check to see what your company says on the subject.
After handling pharmacy claims for almost 20 years, I have found that, in the case of an obvious error, saying “I am sorry, I made a mistake,” is usually a good thing. Often a patient isn’t looking to get even or to collect a lot of money beyond what it takes to treat any injuries suffered.
However, patients do expect a professional pharmacist to be willing to admit a mistake and to apologize. Remaining silent when an apology is appropriate often exacerbates the problem and complicates the claim. No money was ever paid in Sam’s case, perhaps because he took the actions he did.
I have often thought that what Sam did was not only professional; it could even be considered an ethical duty.
Today in the United States, 36 states have apology laws that cover most healthcare professionals. These laws prohibit many or most statements of sympathy or empathy - including, in many cases, statements such as the one Sam made to his patient - from being used by attorneys in a lawsuit.2
These laws are important. They provide the freedom for healthcare professionals to take care of their patients and to do so without concern that something they say that sounds like an apology will be used against them. These laws allow the pharmacist, physician, nurse, or other covered healthcare provider to act professionally and ethically without fear that the words chosen will come back to haunt them.
Find out the law
But there is a problem. Only 36 states have apology laws, and while all cover physicians, some do not include protection for pharmacists.
Find out the circumstances in your state. Contact your fellow pharmacists, your state board, and your state pharmacy association. Apology laws covering all healthcare professionals, including pharmacists, should be the law in every state.
If this protection is not available in your state, work to change the law. This is something worth lobbying for, not just for pharmacists, but for their patients, as well.
1. See Pharmacists Mutual Claims Study: http://www.phmic.com/RM/Pages/pharmliab.aspx. Accessed 11/4/2014.
2. See www.sorryworks.net for list of states with apology law. The site explains: “Thirty-six states have ‘apology laws’ which prohibit certain statements, expressions, or other evidence related to disclosure from being admissible in a lawsuit. Most states simply cover expressions of empathy or sympathy, while a few states go further and protect admissions of fault.” Accessed 11/3/2014.