Patient harm and pharmacist liability

June 15, 2011

Whereas historic pharmacy practice linked the pharmacist to a product, as pharmacists move toward more complete healthcare services, they are now also providers of cognitive services. As pharmacists delve further into cognitive services and take on greater patient responsibility, the process is likely to add to liability exposure.

Key Points

However, as statistics attest, all too often the patient is harmed, sometimes even fatally. Sources reveal that an average of 7,000 deaths per year occur in the United States as a result of adverse drug events, with a corresponding average increase in hospital cost of $4,700 per adverse drug event, all due to medication-related errors.

New responsibilities

In addition, many pharmacies now offer such services as routine blood-pressure screenings, blood-glucose monitoring, and cholesterol testing, to name a few.

In such circumstances, pharmacists must be even more vigilant when managing patient care. All pharmacists should be aware of their standards of practice in order to minimize the risk of any claims of malpractice.

Duty of care

Pharmacy malpractice falls within the common law concept of negligence. In a pharmacy malpractice lawsuit, the elements of the case must include the following: (1) the pharmacist had a duty of care, (2) the pharmacist breached the duty of care, (3) the breach proximately caused harm to the patient, and (4) damages are the result.

Pharmacists have a duty of care to the patients they see. This duty of care typically also extends to the pharmacy, hospital, or clinic where the pharmacist is working. A pharmacist has a professional degree, is licensed by a state board, and holds out to the public as having the training to manage drug therapy for a patient. Pharmacists are, therefore, held to a higher duty of care that requires absolute accuracy in pharmacy practice. In a pharmacist malpractice lawsuit, however, the harmed patient has the burden of proving that the pharmacist breached this duty of care.

The harmed patient also needs to demonstrate that the pharmacist's breach was causally related to the physical damages that the patient incurred. This causation element is referred to as "proximate cause."

Damages

"Damages" usually involve compensation for medical expenses, loss of earnings, disability, pain and suffering, emotional distress in some cases, and any other amount that would be considered necessary to compensate the patient for loss.

In rare cases, punitive damages may also apply. Punitive damages are monetary amounts that are meant to punish the pharmacist, pharmacy, hospital, and any other party that may be liable.

Constant vigilance

To help mitigate against patient harm, pharmacists should engage their staff in a culture of awareness. Ongoing quality assurance programs, benchmarking, and bar-code technology, along with maintenance of open communication internally and with patients, can substantially reduce risk of harm.

This article is not intended as legal advice and should not be used as such. When legal questions arise, pharmacists should consult with attorneys familiar with the relevant drug and pharmacy laws.

Ned Milenkovich is a member at McDonald Hopkins, LLC, and chairs its drug and pharmacy practice group. He is also a member of the Illinois State Board of Pharmacy. Contact Ned at 312-642-1480 or at nmilenkovich@mcdonaldhopkins.com
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