Medical malpractice claims are generally concerned with mistakes which doctors make when they are performing a medical procedure. If an average doctor in the same situation would have reasonably made the same mistake, for example, if the procedure was extremely difficult, then the doctor may not be liable for that mistake.
If, however, the procedure was very simple or the error was gross, such as performing an operation on the wrong body part, then the doctor may be responsible for the injury which results. With medical malpractice, it is not uncommon for the negligence of the medical profession not to directly contribute to a patient’s injury or illness.
Due to the fact that, in many cases, when a patient goes to the doctor or pharmacist for treatment, they often have a pre-existing condition and the negligence of that medical professional merely increases or accelerates the illness. For example, if a patient has a life-threatening condition, they may only be extended the amount of time they have by taking medication.
If a pharmacist is negligent, the patient taking the medication no longer has that extension of time. Although the negligence of the pharmacist did not cause the condition, in these situations, the law can hold the pharmacist responsible.
Although the pharmacist did not cause the patient’s condition and deprive the patient of their ability to live, the pharmacist did decrease their ability to recover and, possibly, the amount of time they have to live. The patient may be able to sue the pharmacist for their lost time or their lost chance at recovery in a pharmacy malpractice claim.
Pharmacists, similar to other skilled professionals, have a duty to exercise a level of care to prevent injuries to patients. A pharmacist may be sued for malpractice if they cause an injury due to failure to meet their standard of care.
What is a Pharmacist’s Standard of Care?
A pharmacist has the important job of dispensing medication to patients, many of whom are extremely ill. If a pharmacist dispenses the wrong medication or the wrong dosage of medication, it may constitute medical malpractice under pharmacy malpractice laws.
Research shows that up to 10% of prescriptions are filled erroneously. Although it may seem unjust to excuse a pharmacist for a mistake, small mistakes which lead to only minor issues may be reasonably excused.
Only when a pharmacist makes a real error which causes injury can they be held liable for malpractice. For example, pharmacist malpractice occurred when a baby was given antibiotics at five times the prescribed dosage. Another example occurred when a child was dispensed the wrong steroid which was made for adults and it caused the child to experience early puberty.
A pharmacist is trained to dispense medication. A regular individual would not have the knowledge to do so.
Because of this, individuals place great trust in pharmacists to properly mix and dispense medications. A pharmacist is also responsible for double-checking medications which are prepared by technicians, who can be inexperienced and low-paid employees.
Pharmacists are specialists and are expected to conduct themselves in a manner consistent with a reasonable person with similar education and training. They must exercise judgment concerning a patient’s use of medications, drug interactions, and refills.
What Are Some Examples of Pharmacist Malpractice?
There are several situations that may rise to the level of pharmacy malpractice, including:
- Dispensing the wrong dose of the drug;
- Dispensing the wrong drug entirely;
- Overlooking a potential drug interaction;
- Failing to exercise proper judgment regarding dosage or duration; and
- Failing to counsel the patient regarding side effects and drug interactions.
A pharmacist may erroneously dispense the wrong dose of a drug or the wrong drug entirely. There are many medications that have similar sounding names but may have entirely different uses. In addition, many medications come in different doses, and the pharmacist may accidently dispense the incorrect dosage.
Another type of error that may occur is mislabeling. In some cases, the proper medication may be dispensed but with incorrect instructions.
This may lead to the patient inadvertently taking the medication in a way that causes harm. Common examples include:
- Taking the medication too frequently;
- Not taking the medication frequently enough;
- Taking too much medication;
- Taking too little medication;
- Not providing a list of what not to take with the medication; and
- Failing to provide side effects which may occur.
A pharmacist may also fail to warn the patient regarding medications which are contraindicated, or cannot be taken together. For example, high blood pressure medications which cannot be taken with angiotensin medications.
This may occur when a patient sees two different doctors for two different conditions and the doctors are not aware of what medication the patient is taking. The pharmacist should be aware of these contraindications and should warn the patient or call their doctor.
An individual can bring a lawsuit by contacting a personal injury attorney in their area. The individual should save their medications as well as any paperwork which came with the medications.
What Do I Have To Show To Successfully Win a Medical Malpractice Claim Against a Pharmacist?
Pharmacist malpractice claims often involve negligence. To show negligence, a plaintiff must prove the following elements:
- Duty: that the pharmacist had a legal responsibility to that patient;
- Breach: that the pharmacist failed to uphold their legal responsibility;
- Causation: that the pharmacist’s failure to live up to his or her duty caused the patient harm; and
- Damages: that the patient suffered a harm which the legal system can address.
What Defenses Would a Pharmacist Have against a Malpractice Lawsuit?
There are several defenses a pharmacist may have against a medical malpractice lawsuit. The first type of defense is available in all types of lawsuits, which is disproving an element of the claim.
If a pharmacist may not be held liable if they are able to show:
- They had no duty;
- They committed no breach;
- They were not the cause of the injury; or
- The plaintiff did not suffer an injury.
In order to prevail, the pharmacist is only required to disprove one of the elements of negligence. Even if all of the elements of negligence are present, the pharmacist may have other defenses available.
The pharmacist may be able to show that the patient did not follow the instructions provided by the pharmacist. This defense is called contributory negligence.
The pharmacist may also be able to argue that they were simply following the doctor’s instructions when prescribing the medication. This defense shifts liability to the doctor. However, it may diminish the pharmacist’s professional standing and undermine their credibility.
What Can a Patient Collect for a Successful Lawsuit?
In order to have a successful lawsuit, the patient is only required to show that the wrong medication or dosage was dispensed and, as a result, they were injured. Liability may also extend to the hospital or facility which employed the pharmacist.
If an individual files a pharmacy malpractice lawsuit, they will request damages. Damages are a monetary amount which is intended to compensate the plaintiff for their injuries.
These damages may also compensate the plaintiff for additional medical care or treatments they have to endure as a result of their injuries. It is also common for plaintiffs to receive pharmacy malpractice settlements.
A pretrial settlement is an agreement between the parties which occurs prior to the case going to trial. It is an agreement for the defendant to compensate the plaintiff for their injuries and losses.
Should I Consult an Attorney about Pharmacist Malpractice?
It is essential to have the assistance of a personal injury lawyer for any pharmacist malpractice issues you may be facing. If you or your loved one has been injured as a result of a pharmacist’s actions, you should consult an attorney as soon as possible.
Your attorney can advise you of your rights and what compensation may be available to you. Malpractice cases can be very complex and having an attorney on your side may mean the difference between being compensated for your injuries and an unsuccessful claim.