Medical malpractice is mostly concerned with the mistakes that doctors make when performing a medical procedure. If an average doctor might have reasonably made the mistake, that is, if the procedure was very difficult, then the doctor may not be liable for the mistake. However, if the procedure was very easy, such as the laceration of a boil, or if the error was “gross,” such as performing an operation on the wrong body part, then the doctor will be responsible for the resulting injury.
What Do I Have To Show To Successfully Win a Medical Malpractice Claim Against a Pharmacist?
Pharmacist malpractice, as a branch of medical malpractice, typically involves negligence. In order to show negligence, a party must prove the following:
- Duty – the pharmacist had a legal responsibility to the patient
- Breach – the pharmacist failed in upholding that legal responsibility
- Causation – the pharmacist’s failure to live up to his or her duty caused the patient harm
- Damages – the patient suffered a harm that the legal system can address
What Legal Responsibilities Do Pharmacists Have?
This section provides numerous examples of how a pharmacist may breach his or her legal duty to a patient.
Pharmacists have the important job of dispensing medicine to patients, many of whom are terribly sick. If the pharmacist dispenses the wrong medication, or in the wrong dosage, this may constitute medical malpractice. A pharmacist must take into account any harmful interactions with other drugs the patient is currently taking. A pharmacist also must consider any allergies that the patient may have.
Research has indicated that up to 10% of prescriptions are filled in error. All of the factors and contingencies may make it seem unjust to excuse a pharmacist for the occasional mistake. And small mistakes that lead to only minor damage may reasonably be excused.
It is only when there is a real error and injury that pharmacists may be held liable for malpractice. For example, it was Pharmacist Malpractice when a baby was given an antibiotic at five times the prescribed dosage. Another child was dispensed the wrong steroid made only for adults, which made him experience early puberty.
Pharmacists are trained to dispense medication. Someone who is not a pharmacist almost surely would not know how to do so. Therefore, people put a huge amount of trust into pharmacists to stay awake when they are mixing drugs. Pharmacists are also responsible for checking on medicine prepared by technicians, who are often low-paid and inexperienced. But cases have shown that pharmacists sometimes fail to do so at large and busy pharmacies such as CVS and Walgreens.
What If the Pharmacist’s Error Did Not Cause the Patient’s Illness?
In medical malpractice, it is not uncommon for a medical professional’s negligence to not directly contribute to a patient’s illness or injury. Given that most of the public go see a doctor or pharmacist when they are in need of treatment, the patient usually has a pre-existing condition and the negligent medical professional merely increased or accelerated the illness. For example, a patient who has a life-threatening condition might only be extending the amount of time he or she has by taking medication. If a pharmacist is negligent, the patient no longer has that time. The pharmacist’s negligence did not cause the condition though. In those situations, can the law hold the medical professional responsible?
The answer is yes. Although the pharmacist did not cause the condition and thus deprive the patient of their ability to live, the pharmacist did decrease the ability to recover and/or the amount of time the patient has left. The patient could still successfully sue the pharmacist for lost time or lost chance of recovery.
What Are the Defenses a Pharmacist Might Use To Avoid Liability?
There are a number of defenses to pharmacist liability. The first set of defenses is common to all lawsuits: disproving an element of the claim. If the pharmacist can show that he or she had no duty, committed no breach, was not the cause of the injury, or that the patient did not suffer an injury, the pharmacist will not be liable. The pharmacist only has to disprove one element of a negligence claim in order to win.
If all the elements are proven though, the pharmacist can still make other arguments. First, the pharmacist may try to say that the patient did not follow the instructions the pharmacist gave. This defense is known as contributory negligence.
Second, the pharmacist may try to say that the pharmacist was simply following the doctor’s instructions in prescribing the medication. This defense shifts liability away from the pharmacist and on the doctor. However, this defense diminishes the pharmacist’s own standing as a professional, which undermines the pharmacist’s own creditability.
Should I Consult an Attorney About Pharmacist Malpractice?
If you or a loved one has been injured by a pharmacist, you should speak to a lawyer immediately. A personal injury attorney can explain your rights and what types of recoveries are available to you.