Pharmacists are entrusted with our health and our lives. If they fail to properly fill a prescription, the result can be injury or even death. When a pharmacist negligently fills a prescription, they may be liable for the resulting injury or death.
A pharmacist must be competent to perform the duties of his or her profession and possess and exercise that degree of knowledge and skill ordinarily exercised by other members of the profession. A pharmacist must know the properties of the drugs sold and employ people capable of discriminating between them. Violation of a pharmacist's duty of care may result in liability for damages.
An illegible prescription does not lessen the pharmacist's duty to take all reasonable precaution in preparing the prescription, even where the pharmacist's first reading indicates that the prescription calls for a drug which, in the quantity specified, is likely to be harmful.
If the dosage of a drug prescribed by a physician appears to be unusual, the pharmacist has the duty to make inquiry of the physician to make sure there has been no error. Failure of the pharmacist to make inquiry, however, as to whether there was error in the prescription does not render the pharmacist liable where the result of the inquiry would have been to confirm the prescription.
Some common examples of pharmacist malpractice include:
There are a variety of ways in which a pharmacist might negligently supply drugs or medicines other than those requested by the customer or physician. For example, the pharmacist might negligently dispense an incorrect drug, add or substitute an incorrect ingredient into the compound, use an incorrect percentage of an ingredient in a compound, or dispense an incorrect dosage of the drug or medicine called for. Therefore, a pharmacist may be found negligent if he sold a harmful and completely different medicine or drug in place of the harmless one called for by the purchaser or prescribed by the physician.
A pharmacist is liable for mislabeling a drug. For example, mislabeling of the customer's name may give rise to liability for pharmacist negligence where, as a result of such mislabeling, a person is dispensed a drug intended for another person and injuries result.
A pharmacist's duty of care includes a duty to warn the consumer of known dangers connected with the drugs and medicines dispensed. Therefore, a pharmacist may be liable for injuries resulting from his negligent failure to warn the consumer of known dangerous drug properties. However, liability will only exist where the pharmacist fails to warn of a known dangerous drug property. Courts reason that a pharmacist is not an insurer as to the drug properties and not strictly liable for drug defects of a manufactured compound.
Pharmacists have some defenses if they are accused of malpractice. The first defense is that the pharmacist has met the standard of care. A pharmacist can give the wrong drug, mislabel a prescription or fail to warn about a danger if a “reasonable pharmacist” would fail to do the same. This defense is most effective if the judge allows different standards of care to be used.
For instance, if the pharmacist is inexperienced and the standard of care is a reasonable pharmacist with the same experience, then a showing that other inexperienced pharmacists would make the same mistake would be a good defense. On the other hand, a pharmacist with many years of experience would prefer to have a fixed “reasonable pharmacist” standard of care because the experienced pharmacist would not have the experience used against him or her.
The second defense is that the pharmacist’s error did not cause the patient’s injury. Causation includes both actual cause and proximate cause – whether the injury was foreseeable because of the pharmacist’s error. For example, if a pharmacist mislabels a prescription, but the patient fails to use any of the medication, the pharmacist’s error cannot be the cause of the patient’s suffering because the patient never placed himself in a position where the pharmacist’s error could affect the patient.
Finally, there are a series of affirmative defenses that a pharmacist can use. Affirmative defenses are defenses which confirm that the pharmacist made an error, but there were other factors which mitigated the error. The most common affirmative defense is contributory negligence, where the patient contributed to his or her own injury. For example, a pharmacist forgets to label the prescription to warn about sleepiness but warns the patient verbally. If the patient decides to drive after taking the medication and ends up in an accident, the pharmacist can say that the patient was injured despite the pharmacist’s failure to properly label the medicine.
Patients can ask for compensatory damages and punitive damages. Compensatory damages are designed to heal the patient. For instance, if the patient has to go see another doctor or buy additional medication, compensatory damages will cover those expenses. Likewise, if the patient dies because of the of pharmacist’s malpractice, the patient’s family can seek compensatory damages to pay for funeral expenses and loss of income. Compensatory damages can be deducted if affirmative defenses are successful. If contributory negligence is not a complete defense in your state, it can still cut down on the amount of compensatory damages owed.
Punitive damages are designed to punish the pharmacist for his or her wrongful conduct. Punitive damages will often be handed out if the pharmacist has been convicted of malpractice before. Punitive damages are subject state punitive damage caps.
If you or a loved one have been injured by a negligent pharmacist, you should speak to an attorney immediately. A personal injury attorney can explain your rights and what types of recoveries are available to you. Also see the article Suing a Pharmacist for Malpractice.
Last Modified: 03-15-2018 07:03 PM PDTLaw Library Disclaimer
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