The Pharmacy's Duty To Reduce Misfilled Prescription Errors By Its Pharmacists

27 Jul 2007

Does a pharmacy (drugstore) have a separate and independent duty to the customer/patient to reduce or avoid errors by its employed pharmacists?

The answer, as you would hope, is "yes, indeed."

If a pharmacist makes a mistake on a prescription, the pharmacist obviously may be held liable for the injuries caused by the error. And, through the legal concept of vicarious liability, a pharmacy will be liable for damages caused by its employees if they are acting within the course and scope of their duties for the pharmacy.

The pharmacy, however, has a duty beyond this. A recent Alabama Supreme Court opinion illustrates the reasoning that requires the pharmacy to do more than just employ competent pharmacists.

The Alabama case arose out of a pharmacist's mistake, which caused non-permanent injury to a patient. The patient filed a lawsuit against the pharmacy alleging the pharmacist was negligent. Such allegations are commonly made in cases of misfilled prescriptions.

Direct Allegations Against The Pharmacy

The patient (plaintiff) filed an additional count as part of the suit and asked for an extra monetary award to be paid by the pharmacy because it had not developed a system to assure that its pharmacists filled prescriptions correctly in the first place. The basis for this count was the argument that the pharmacy owed to its patients a duty to reduce the probability of prescription errors.

In the case of Harco Drugs v. Holloway, the pharmacist misread a Tamoxifen prescription and filled it with Tambocor. The jury found the pharmacist was negligent and that the pharmacy was responsible for the resulting injuries.

Punitive Damages Awarded Against The Pharmacy

The jury went further, finding the additional duty on the pharmacy itself had been breached, and awarding the plaintiff punitive damages against the pharmacy owners. Punitive damages are permitted in most states when the misconduct is gross, reckless, or wilful.

The pharmacy appealed, but the Alabama Supreme Court agreed with the jury and upheld the punitive damages.

In its decision the Court said: "We note that the jury was also informed of 233 incident reports that had been prepared by Harco employees during the three years preceding the incident. This evidence, in addition to evidence of complaints filed with the State Board of Pharmacy and the evidence of lawsuits filed alleging misfilled prescriptions, was relevant to show Harco's knowledge of problems, and Harco's having failed to initiate sufficient institutional controls over the manner in which prescriptions were filled."

By "institutional controls" the Court was clear that it was placing upon the pharmacy an additional duty, for which it could independently be held liable. That duty requires the pharmacy owner or chain to institute a system of risk management designed to reduce the number of errors in its pharmacies.

Several boards of pharmacy are now considering a similar position in order to stem what the boards see as an alarming rise in the number of complaints of pharmacy errors. When the number of errors reported have caused the boards to become concerned for the public's safety, some boards of pharmacy have required pharmacy owner or chains to institute a plan of quality assurance or risk management.