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Can You Sue a Pharmacist for Medical Malpractice?

By the time you end up at the pharmacy, you may have already seen the doctor and are picking up the medication that is supposed to help your condition and make things better. You would never expect that the medication could end up hurting you or making things worse. Even if your doctor makes the right diagnosis and treatment plan, a pharmacist’s error could end up causing you serious pain or even death. 

How can a pharmacist make such a terrible error? Pharmacy errors can result in giving you the wrong medication, giving you too high or low of a dose, or failing to properly store the medication which makes it ineffective. If you think there might have been a problem with your medication or the pharmacist made a dangerous mistake, Gilman and Bedigian may be able to help. Contact our office today online or by phone at 800-529-6162.  

Pharmacist Errors and Patient Injury

According to the Food and Drug Administration (FDA), a medication error is “any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the healthcare professional, patient, or consumer.”

Medication errors at the pharmacy/pharmacist level can include entering drug information into a computer system, when preparing the drug, when dispensing the drug, or when instructing the patient on the proper administration of the drug. Other medication errors include: 

  • Confusion among similarly named drugs
  • Wrong drug strength dispensing
  • Wrong patient information
  • Improper documentation
  • Transcription errors
  • Wrong medication
  • Wrong route of administration
  • Wrong frequency
  • Wrong time
  • Wrong patient
  • Unauthorized drug  
  • Improper drug handling

Medical Malpractice Claims Against the Pharmacist

Depending on the type of medication error injury, different healthcare professionals can share responsibility for the injury. Liable parties for a medication error can include: 

For a malpractice claim against the pharmacist, the pharmacist is the cause of the patient’s medication injuries. This generally involves problems in measuring or dispensing the drug, handling the drug, or providing information to the patient. 

Drug Dispensing Errors

Even common drugs can be dangerous under the wrong circumstances. If the patient is given the wrong drug, it can cause injury directly, impair the patient’s functioning, or interact with another medication that causes dangerous side effects. 

The FDA has strict requirements for labeling for drugs. Labels need to include specific information, including: 

  • Active and inactive ingredients
  • Purpose and use
  • Specific warnings
  • Dosage instructions
  • Allergic reactions

Black box warnings are required for medications that have serious safety risks, and call attention to serious or life-threatening risks. It is important for pharmacists to be aware of the drugs they are handling, including the ingredients, specific warnings, dosage, and safety risks. It could be easy to cause an error if a pharmacist was not paying attention, multitasking, or filling multiple prescriptions at the same time. 

Drug Handling Problems

Most medications have an expiration date that should provide a guideline for how long a drug remains at its proper potency and stability. However, other drugs are much more sensitive, including drugs sensitive to extreme temperatures or exposure to light. If a drug is required to be refrigerated, it should be maintained at the proper temperature and have limited exposure to room temperature or elevated temperatures. 

According to a study by the University of Illinois at Chicago College of Pharmacy, Drug Information Group, some injectable prescription drugs are light-sensitive and exposure to light can cause photodegradation or chemical reactions that affect drug stability. This includes medications like: 

  • Tylenol with codeine
  • Tegretol
  • Wellbutrin
  • Valium
  • Cardizem
  • Cortisone
  • Klonopin

Even drugs without specific temperature or light restrictions should generally be stored at room temperature, in a dry place, and away from heat, humidity, and light. 

Proper drug handling also requires sanitary conditions. Surfaces, other materials, and even hands can carry bacteria, viruses, or fungus. When these contaminants come into contact with the medication, they can cause an infection in the patient. Contaminated injectable drugs can cause serious injury if they introduce the infection directly into the patient’s body. 

Improper Patient Information Errors

It is also important that the pharmacist give the patient the right information about the medications they are given. A pharmacist should make sure the patient does not have any unanswered questions about the safe use of the drugs, including understanding: 

  • Right dose
  • Right frequency
  • Common risk factors
  • Possible side effects
  • Dangerous drug interactions

Unfortunately for patients, many do not understand the common risks of a medication and just take it based on the dosage and frequency written on the bottle. However, some drugs can cause drowsiness and be dangerous if the patient drives after taking the drug. 

According to a study by AAA, a survey of drivers found that 45% of those questioned had taken at least one medication that could impair driving and drove within 2 hours of using the medication. Potentially driver impairing (PDI) medications included: 

  • Antihistamines and/or cough medicines (such as Claritin, Allegra, and Benadryl) 
  • Antidepressants (such as Prozac, Zoloft, and Wellbutrin) 
  • Prescription pain medicines (such as Tylenol with codeine, OxyContin, Percocet, and Vicodin/ hydrocodone) 
  • Muscle relaxants (such as Soma and Flexeril) 
  • Sleep aids, Barbiturates, or Benzodiazepines (such as Ambien, Lunesta, phenobarbital, Xanax, Valium, and Ativan) 
  • Amphetamines (such as Adderall, Dexedrine, and phentermine)

According to the drivers surveyed, up to half of them said their healthcare provider had not given them warnings about the potentially driver impairing effects of the drugs. 

Negligence Claim Against the Pharmacy

The pharmacy itself could also be liable for malpractice or negligence. For example, if a pharmacist or pharmacy tech made a mistake the pharmacy could be vicariously liable. Respondeat superior is a liability claim where the employer is generally liable for the negligence of the employee. 

The reason is that the employer is generally in a better position to compensate an injury victim than an employee and the employee is doing work on behalf of the employer. If the pharmacist or pharmacist tech committed negligence while in the course of their job duties, the pharmacy may also be liable. 

Pharmaceutical Company Liability for Dangerous Drugs

The pharmaceutical company that produced the drug can also be liable for dangerous drug injuries. Under a product liability claim, the manufacturer, distributor, or seller can be liable for defective drugs, including injuries caused by:

  • Design defects
  • Manufacturing defects
  • Failure to warn defects

What Are the Standards of Care for a Pharmacist?

Professional malpractice cases generally require proving 4 elements. The 4 elements of a negligence or malpractice claim include: 

  • Pharmacist owed the patient a duty of care; 
  • The pharmacist breached their duty by deviating from the standards of pharmaceutical care; 
  • The breach caused an injury to the patient; and
  • The patient suffered physical or financial harm as a result of the breach.

The standard of care of a pharmacist is measured by comparing the pharmacist’s actions to that of other reasonable pharmacists. If a pharmacist deviated from the standards of care by doing something other pharmacists would have done, or not doing something that a reasonable pharmacist would do, then that can be considered a breach of their duty of care. 

Not all deviations from standard practice are considered malpractice, the deviation has to have caused injury or harm to the patient. For most pharmacy medical malpractice cases, the deviation would be in the way they handled or dispensed drugs, or giving incorrect information to the patient. 

Pharmacist Expert Witnesses

In a medical malpractice case, you will generally require an expert witness to provide information to the jury. An expert witness is someone with the scientific, technical, or specialized knowledge to help the jury determine a fact at issue in the case. This includes providing an opinion on whether the pharmacist deviated from the standard of care and if the breach caused an injury to the patient. 

An expert witness in a pharmacy malpractice case would generally be an experienced pharmacist, or pharmacy school professor or educator. As an experienced professional in the same or similar profession, another professional would understand what the standards of care are for pharmacists under similar conditions, and could give an opinion on the actions of the pharmacist in the lawsuit. 

The expert may be required to certify that the lawsuit is based on a valid claim at the time the complaint is filed. The expert can then provide an expert witness report after all evidence and information is gathered. Finally, the expert can testify to the jury if the case goes to trial, to provide an opinion, and answer other questions for the benefit of the jury. 

Pharmacist Education and Training

Pharmacists have to go through a lot of education and training before they can become licensed pharmacists. It may not be as much schooling as for doctors but pharmacists are taught the importance of drug safety, dangerous drug interactions, patient education, and the professional standards of pharmaceutical care. 

Pharmacist education, training, and professional practice are generally managed by each state’s Board of Pharmacy. In most states, pharmacists require a university clinical degree program at the Doctor of Pharmacy (Pharm.D.) level. Before the Pharm.D. program, applicants generally have to complete a minimum of 2 years of prerequisite undergraduate schooling. Some schools require a minimum 4-year degree before admission to pharmacy school. 

The Pharm.D. program is generally a four-year program. This program includes classroom education, lab work, and experiential education that complies with the Accreditation Council for Pharmacy Education (ACPE) standards. According to the ACPE, healthcare professionals should complete 5 competencies in their education: 

  • Provide patient-centered care  
  • Work in interprofessional teams  
  • Employ evidence-based practice  
  • Apply quality improvement  
  • Utilize informatics

Educational coursework for pharmacy school includes coursework in the following areas: 

  • Pharmacokinetics
  • Pharmacology
  • Medicinal chemistry
  • Pharmacotherapy
  • Medication safety
  • Pharmacy law and ethics
  • Biostatistics
  • Toxicology
  • Epidemiology
  • Hands-on skill-based labs
  • Evidence-based practice
  • Innovation
  • Business management

Advanced Pharmacy Practice Experience (APPE) and Introductory Pharmacy Experience (IPE) provide real-world experience in community pharmacies and hospital pharmacy settings. Rotations focus on providing direct patient care, experience treating diverse populations, collaborative patient-care decision-making, collaboration with interprofessional healthcare teams, demonstrating competence, and exposure to professional pharmacy opportunities. 

Many pharmacists also engage in post-graduate training, similar to a doctor’s residency training. This can be a one-year or 2-year residency program, with a second year residency focusing on a specialty area, such as pediatrics or oncology. After completing a year two program, graduates can take board certification in their area of specialty. 

After completing the educational and experience requirements, students are required to pass the North American Pharmacist Licensure Examination (NAPLEX). Students also have to pass exams of state-specific laws and regulations where they intend to practice. Even after getting licensed, pharmacists need to complete ongoing educational requirements and re-licensure. 

For example, in Illinois, continuing education for registered pharmacists need to complete 30 hours of continuing education each 2-year license cycle, including one hour in Sexual Harassment Prevention training. Certified Pharmacy Techs are required to complete 20 hours of education every 24 months.

Is a Pharmacy Tech the Same as a Pharmacist?

A certified pharmacy technician is a different profession in pharmacy practice. Most pharmacy techs are eligible to become registered techs after about 9 months to one year, including post-training externships or on-the-job training. Pharmacy techs assist registered pharmacists in preparing prescription medications, taking information over the phone, mixing medicine, measuring medication, labeling medicine, and instructing patients.  

If a pharmacy tech makes a mistake, the pharmacy or supervising pharmacist may be liable for their negligence. This means you can generally sue the pharmacy and/or pharmacist for the pharmacy tech’s errors. If a pharmacist or pharmacy tech caused a serious injury because of a mistake or medication error, talk to an experienced medical malpractice lawyer for help. 

How Can I File a Medical Malpractice Lawsuit Against a Pharmacist?

If you want to sue a pharmacist for medication errors, contact an experienced medical malpractice law firm about your options. A medical malpractice attorney can look at your case, review your health records, and help you file a complaint in civil court for medical malpractice. With an experienced attorney on your side, you can recover the maximum damages for your injuries. Contact a law firm that handles pharmacy medical malpractice cases like yours. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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