Pharmacists give medical advice, know how medications interact, and offer help when we’re sick. If we are ingesting pills that are supposed to do something, then by God, we want to make sure they’re the right ones to take.
But what happens when the pharmacy makes an error? How often does it happen?
Pharmacists take their time in making sure that a prescription is correct, and they have many safeguards before it leaves the premises.
Additionally, there are labels on the bottle and descriptions of what the pill should look like to the consumer. The drugs are also accompanied by literature explaining what the medication is, what it does and what the potential side effects are.
Sometimes, somehow, the incorrect pill can slip by those safeguards, and the user can end up with the wrong prescription or the wrong dosage.
How does this happen?
Pharmacists are humans before anything else. As such, there is the capacity for human error.
The impending march of technology hasn’t relegated pharmacists to the unemployment line yet, but that means the human brain – fickle as it is – can’t interfere with the process of filling a prescription.
Here are some ways that this can happen:
It is an entirely subjective examination as to what the situation was surrounding the error and why the pharmacist made the mistake.
That is why just denouncing the pharmacist isn’t always the best solution. It is not always simple negligence or even reckless disregard; there is always a more complicated story that must be explained and investigated to keep that mistake from happening again.
Pharmacy malpractice is a type of personal injury law that comes under the theory of negligence. This means that the following must be true in order for the victim to prevail:
A relationship is established between a pharmacist and patient who fills a prescription at that pharmacy.
This means that the pharmacist has a duty of care toward that patient, and that duty also extends to the establishment in which that pharmacist works. Considering that the pharmacist has the degree and is licensed by the state, he or she is held to a higher standard of care. (However, the burden falls upon the plaintiff to show that the defendant breached that higher standard of care in a medical malpractice lawsuit.)
The important piece – the most difficult, to be sure – is showing proximate cause. This is the legal cause, which in a negligence cause means that the victim’s injuries were foreseeable. If the plaintiff’s injuries were not foreseeable, then negligence cannot be established.
The plaintiff must show that the pharmacist’s negligence in prescribing the incorrect medication is actually what caused his or her injuries. Some states use different tests for determining proximate cause, such as the but for test or the substantial factor test.
The But For test states exactly that: But for the defendant’s conduct, the plaintiff’s injuries would not have happened. So, in this case, but for the pharmacist’s conduct (prescribing an incorrect medication), the patient would not have been injured.
Here, courts consider factors in determining whether the defendant’s actions (here, a pharmacist prescribing an incorrect medication) were a substantial factor in causing the plaintiff’s injuries.
The court might also consider other compensation as well, depending on how severe the patient’s injuries were and how bad of a medication mix-up it was.
The pharmacy or hospital for which the pharmacist worked will also be liable under the theory of respondeat superior, or “let the employer answer.”
This means that the employer is responsible for the acts of the employee during company hours. They will argue this as hard as possible, because they have deep pockets and can afford to do so. However, if that pharmacist was filling prescriptions during regular business hours, they will most likely lose.
Additionally, if the pharmacy error was truly unforgiveable, the court might apply punitive damages to the case. These are damages meant to punish, and in applicable, they would be slapped against the pharmacist, pharmacy, hospital or other entity that could potentially be held responsible for the error.
Finding an attorney who is proficient in pharmaceutical errors and medical malpractice can be difficult. If you need one, consider speaking with someone in the Enjuris law firm directory – they will be able to help.
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