American's rely heavily on prescription medications. A recent study reports that nearly seven out of 10 Americans regularly take at least one prescription medication and more than 50 percent are taking two prescription medications.
In 2016 Americans filled an estimated 4.453 billion prescriptions. Antibiotics are the most prescribed medication followed by antidepressants and opioid painkillers. Forth on the list are drugs to lower lipid levels in patients followed by drugs to reduce blood pressure.
While there is an expectation of professionalism from our doctors, physician assistant, nurses, and pharmacists, and pharmacy technicians mistakes still happen. The pharmacist is an integral part of the healthcare paradigm so errors in the writing, filling or administration of prescription medications can have adverse and possibly deadly effects.
There are many risks involved in prescription medications including improper prescription preparation, failure to recognize drug interactions, failure to inform patients on proper administration of the drug, possible allergic reactions, or therapeutic duplication, to name a few.
The most common form of mis-prescription occurs when a pharmacist dispenses the wrong drug, but mistakes also happen by dispensing the right medication, but the wrong strength, providing incorrect administration directions or mislabeling of a drug. Pharmacists also have a duty to warn consumers of the dangers connected with the drugs dispensed.
Regulations in every state including Maryland require pharmacists to counsel patients on possible side effects, interactions, or therapeutic contradictions that a drug may have. Failure to properly inform a patient of these risks may rise to the level of negligence if there is an adverse reaction following administration of the drug.
Another recent study found that medication errors are one the most common types of healthcare errors and that the 1.5 million errors each year lead to thousands of deaths annually. One national study found that prescription error rates were 1.7 percent, which considering the number of prescriptions filled last year, could lead to as many as 75 million prescription mishaps in 2017.
Pharmacists, like other licensed professional, are obligated to abide by certain standards and regulations. Failure to comply with these regulations can rise to the level of negligence. Negligence, by definition, is the act of an imprudent or unreasonable person. A pharmacist's neglect is often the result of a careless or thoughtless action, but it may also be the result of forgetfulness, distractions, ignorance or just bad judgment.
Due to legislation passed in 1990, pharmacists have increased responsibilities concerning Medicare recipients. The Omnibus Budget Reconciliation Act of 1990, or OBRA, required pharmacists to offer counseling to Medicare patients on the prescription medications being dispensed.
In Maryland, a pharmacist must offer to discuss with a patient information about a prescription. A Maryland pharmacist can provide this information via face to face communication, by pamphlets included with the order, signs posted throughout the pharmacy, or by telephone.
During a consultation a pharmacists generally discusses with patient the name and description of the medication, particular directions and precautions for preparation, and administration of the drug, common side effects or drug interactions, techniques for monitoring the drug's effectiveness, proper drug storage, information on refilling prescription, and actions to be taken in the event of a missed dose.What is Pharmacy Malpractice?
Pharmacy malpractice or pharmaceutical malpractice occurs when pharmacist or pharmacy technician fails to abide by regulations or standards of care and the negligence results in harm to the patient. A victim of pharmacy malpractice can bring a lawsuit against a pharmacy, pharmacist, technician, hospital, or healthcare provider involved in the distribution or administration of prescription medication.
Often pharmacy malpractice is due to dispensing errors including dispensing the wrong medicine, or the incorrect strength or quantity of the drug, or incorrectly compounding a medication. Other dispensing errors include dispensing the drug at the wrong time, or with an incorrect label, including an incorrect patient name, drug name or drug strength, or distributing drug with incorrect information to the patient.What Should a Person do if He or She Suspects There has Been an Error in Their Medication?
The consequences of prescription negligence can range of effects from mild to catastrophic. If a patient suspects an error has in their medication the first thing they should do is contact the pharmacy and report the mistake. Then the patient should contact their doctor to minimize the adverse effects. After reaching out to medical professionals, it is essential to contact an experienced attorney like Miller & Zois or someone else, who will counsel you to gather evidence including the names of the professional involved, copies of the prescriptions, the bottles the drugs came in.What Happens in a Prescription Medication Malpractice Lawsuit?
When an injured patient sues due to prescription malpractice, there are four elements of the case that need to be proved, legal duty to protect the patient, a breach of that duty, that the victim sustained an injury and that the injury led to real damage.
The first element of a negligence case, duty, occurs when a pharmacist undertakes to fill a prescription. Upon filling a prescription, a pharmacist has entered into a professional relationship with the patient and now has a legal obligation to protect that patient. A pharmacist is held to a standard of care when he or she fills a prescription. There is an expectation that a pharmacist exercises the highest possible degree of care and diligence by employing the most reliable and exact safeguards when he or she fills a prescription.
Violation of the pharmacist's duty can rise to the level of negligence and result in a liability for damages. A pharmacist that dispenses an incorrect drug, fails to compound a prescription correctly, incorrectly labels instructions, or by fails to inform a patient of possible drug interactions, side effects, or allergic reactions may be liable for the negligence. In most cases, the plaintiff will rely on an expert witness, who will draw on their own experience, knowledge of laws, regulations, and codes of ethics to determine if the pharmacist performed their required duties adequately.
The third element that the plaintiff must prove to prevail in a trial is that they were injured or harmed and that the breach of duty proximately caused the harm. In many cases, this is not too difficult to prove. For example, an injury could have occurred when the patient became dizzy and fell, or their blood sugar dropped precipitously, or they suffered an allergic reaction.
Breach of duty can occur in one of two ways; either the task is not performed - known as nonfeasance - or the activity is performed, but it is incomplete or incorrectly done - known as malfeasance. The injury can happen to the victim's mind or body. In some states, the law requires that the victim has suffered a physical injury in order to make a claim for emotional injuries. The theory is that claims for anxiety, stress, or sleeplessness are more credible if they result from bodily harm.
Lastly, a plaintiff in a negligence case must prove that injuries led to damages. Damages can include pain and suffering, loss of income or future income, loss of life, medical bills and rehabilitation costs, loss of service, loss of consortium and in some cases punitive damages.
A court may asses punitive damages when it deems the pharmacist acted in a grossly negligent manner or in reckless disregard for the patient's life. Punitive damages are imposed when a court considers a negligent action so irresponsible that an example should be made of the act to discourage others from acting in the same or similar manner.
In most negligence cases the injured party, or plaintiff, bears the burden of proof of the negligence. There are instances where there is a reasonable inference of negligence, when the courts may lift the burden of proof by applying res ipsa loquitor, translated into "the thing speaks for itself," a common law doctrine, that establishes presumed negligence by the injury could not have occurred without the professional or defendant's negligence.What is the Pharmacists' Standard of Practice?
Pharmacists are held to the highest degree of professionalism necessary to prevent injury from the drugs prescribed. To prove negligence in a lawsuit against a pharmacist, a plaintiff must show that the pharmacist deviated from the standard of care required of the profession. Most states have enacted minimum practice standards including accurate compounding of the drug, precise prescription dispensing, patient counseling, documentation of possible medication interactions and allergies as well as requisite record keeping.What can a Patient do to Help Prevent Pharmacy Errors?
Because pharmacy mistakes can cause serious injuries or death, but there are ways for patients, to protect themselves and prevent harm due to pharmaceutical errors. These steps include knowing the name does and prescribing instructions for every prescription a patient takes. Making sure the information of prescription bottles matches what was prescribed by the doctor. Keeping a record of all prescription medications by writing down relevant information or saving the prescription inserts.Why do Pharmacists Seem to Make More Errors Than They did in the Past?
There are many theories as to why it may seem that pharmacists are making more errors than they did in the past including an increase in the volume of prescriptions pharmacists expected to handle on a daily basis. Pharmacists often work 12-hour shifts and are expected to fill between 300 to 450 prescriptions during that shift. Pharmacists also face an ever-increasing number of drugs on the market. Some pharmacies also face understaffing, rely too heavily on pharmacy technicians or have inadequately trained or overworked staff.How can Pharmacy Errors be Prevented?
One recommendation to reduce medication errors and harm is the use of the "five rights": the right patient, the right drug, the right dose, the right route, and the right time. The five rights are a goal of the dispensing process, but not the "be all and end all" of medication safety.
Several proposals can help prevent pharmacy errors including better training, competency examinations, and regulation of physicians and pharmacy technicians; mandating the double-checking of all prescriptions dispensed; utilizing technical advances including barcoding and other automated procedures to dispense medication and implementing requirements that pharmacies voluntarily report errors to governmental agencies.
Pharmacies can also prevent errors by ensuring sufficient staffing, check and double check that prescription entry is correct and clarify any unclear information. Pharmacists and technicians should check prescriptions thoroughly making sure the prescription dispensed matches the drug prescribed.
Lastly, pharmacy errors can be prevented by proper patient counseling informing patients on how to properly take the medication, and opening containers to show the contents, which gives patients the opportunity to raise an alert to a pharmacist if the pills look different than what they usually take.What Should You do if You Were the Victim of Pharmacy or a Pharmacist's Negligence?
Shockingly, every day people receive incorrect prescriptions from their local pharmacy. Many times, the effects of the wrong medication are minor, but many prescription errors result in injuries that are more serious.
A prescription error may occur as a result of doctor error or medical malpractice by a pharmacy filling it incorrectly. If a patient received the wrong medication, immediately call the pharmacy, advise them of the mistake and pick up the correct prescription. Many times, a patient fails to recognize an error made by pharmacy until an adverse side effect occurs. Often a prescription error can lead to a trip to an emergency room or even in-patient stay at a hospital.
It is important to recognize that the effects of an incorrect prescription medication may not become evident for days or weeks following the administration of the drug. That is why it is imperative that a prescription malpractice victim document the when and how of the pharmacy mistake; keep notes on when the discovery of the mistake, such as how long after you were taking the incorrect medication, and how was the error made, such as did the doctor write the prescription wrong, or did the pharmacy fill the prescription incorrectly. If the mistake is made known to the patient by the pharmacist or an employee of the pharmacy it is imperative to keep a record of who informed a patient about a mistake, and what information was revealed. The more information a victim can record about the incident, the stronger the patient's case will be going forward.Who Should You Contact if You Suspect You Were the Victim of Prescription Malpractice?
If you, or someone you love, were the victim of prescription malpractice it is imperative to get the best representation you deserve. Determining who is at fault following a prescription malpractice injury can sometimes be complicated and confusing. If you were injured due to prescription malpractice it is essential all offending parties are held accountable for their actions.
To make sure you get the compensation you deserve you need an experienced attorney to identify all the parties that may be responsible for your injuries. If you have been a victim of pharmaceutical malpractice, call Miller & Zois and speak to one of our experienced prescription malpractice attorneys at 800-553-8082 or click here for a free Internet consultation.