On a Friday, Caregiver picked up two prescriptions for Patient at Patient’s regular pharmacy. Upon reaching her office, where she had to make a stop before delivering the prescriptions, Caregiver noted that the medications, which she had administered many times over a significant period of time, were reversed. Drug A was in Drug B’s bottle with instructions to take 1 BID. Drug B was in Drug A’s bottle with instructions to take 1 QD.
Caregiver called and complained to the pharmacist. Pharmacist apologized and asked Caregiver to return the bottle so she could set things straight. Instead, angry Caregiver delivered the bottles and made no comment to Patient or Patient’s family about the error. The family, who took care of Patient over the weekend, gave the wrong doses to Patient for two and a half days. Patient was injured and required hospitalization.
The family sued the pharmacy and pharmacist. At trial, Pharmacist told of the phone call between herself and Caregiver. Upon giving her testimony, Caregiver denied the phone conversation occurred until faced with her phone records. In a startling court moment (wish I could have been there), Caregiver broke down and admitted she made the call and did not warn the family of the error. She claimed she was so angry over the meds being wrongfully bottled that she wanted to teach the pharmacy a lesson.
The jury, despite this revelation, found for the injured Patient and awarded damages to the tune of $100,000. Lawyers for the pharmacy and Pharmacist immediately moved the court to give the jury an instruction on comparative negligence.
Comparative negligence can be employed where the fault for harm caused can be shared between different parties. It is a means for a defendant—here the pharmacy and Pharmacist—to reduce their fault and thus their liability. Usually the other party is the plaintiff herself, but as in this case, it can be a third party. Where comparative negligence is permitted, the jury, after deciding for the plaintiff, then allots blame or fault in a percentage manner.
Here, the jury found the pharmacy and Pharmacist to be 5% at fault for the error and 5% at fault for not following up after Caregiver’s failure to bring the medications back to the pharmacy. The other 90% of fault was assigned to Caregiver. Having only a total of 10% of the fault, pharmacy and Pharmacist were only required to pay Plaintiff Patient $10,000, 10% of the $100,000 awarded.
This is in contrast to a legal doctrine known as contributory negligence. In such cases, the plaintiff must be the other party contributing to the negligent act. For example, a patient receives a refill for his medication and the tablets do not look like those he got in the past. Trusting his pharmacist, patient does not question the change in appearance and takes the tablets, which are the wrong medication. Plaintiff contributed to the negligence.
Even if the plaintiff is found to only be 1% at fault, most jurisdictions utilizing contributory negligence then deny the plaintiff any relief or award. The slightest contribution to the negligent act negates any damages
Defenses That Aid Comparative Negligence
When a pharmacist is accused of negligence and she reasonably believes the patient may have contributed to his injury, she has available defenses that aid in shifting the blame from pharmacist to patient. Let us look at a few:
Assumption of the risk—this occurs where the plaintiff either expressly or impliedly assumes the risk for a known danger. An example: Patient refuses counseling but while transacting the sale, pharmacist warns, “Do not drink or drive while taking this medication.” Patient does drive and has a wreck. Patient expressly assumed the known risk because of the pharmacist’s words as well as by refusing counseling.
Last clear chance doctrine—here the harmed patient has the last clear chance to avoid harm that is about to occur. An excellent example of this is the one I used above: patient gets home from the pharmacy and prepares to take a tablet of a prescription she has taken for many months or years. The tablet looks different; no one at the pharmacy mentioned a change in appearance or substitution. Patient has the last clear chance to avoid harm by checking with the pharmacy to make sure this is not a mis-fill.
Intervening cause—this doctrine applies where the harm could be lessened or avoided but an intervening person or event vitiates the attempt to lessen or avoid. John looks at his tablets and they appear different. As he picks up the phone to check with the pharmacy, his friend says, “Put down the phone. There are new generics all the time. Take your pill and quit worrying.”
Superceding cause—this doctrine applies where a superceding event worsens the harm. John takes his prescription tablet and begins vomiting horribly. His wife checks with the pharmacy and finds out John has the wrong medication. Pharmacist assures her that John ought to recover in a few hours but to take him to the ER just to be on the safe side. Wife runs a red light and is t-boned by a car that had the green light. John is critically injured with multiple fractures, lacerations, broken ribs, and a ruptured spleen. These injuries far outweigh the vomiting and supercede the initial negligent event of the mis-fill. (The issue of foreseeability is also germane here but that is for another time.)
The Nuisance Lawsuit
We have all heard of them. But what is a “nuisance lawsuit”?
Just that. It is a nuisance.
OK, but how about being more specific?
A nuisance lawsuit is a lawsuit filed that seeks recompense for an alleged (not even established as real in many cases) harm but the case is cheaper and easier to settle than to go through the time and effort and expense of litigating the suit. Quite often, if a pharmacist is alleged to have done a mis-fill that caused harm and the plaintiff is seeking less than $75,000, the malpractice carrier will choose to settle the case rather than litigate it. There will probably be a minimal effort exerted merely to negotiate down the offer to settle some thousands of dollars, but that is it.
In these cases, it costs less to throw a few thousands (and again, a “few” these days can be up in the direction of $100K) at the patient than to take up an attorney’s time, engage in discovery, do depositions, file documents, write briefs, make motions, etc etc.
The down side to this is for the pharmacist who is sure or pretty sure she did not err. Getting out from under a lawsuit by throwing money at the patient makes you want to grit your teeth and cuss a blue streak. The pharmacist is the one who decides whether or not to just let a case go, if private insurance is involved, but that pharmacist will get a gentle warning that costing the insurance carrier $20K in legal expenses for a $10K claim is not going to be looked upon well at policy renewal time. And if it is a chain’s or employer’s malpractice, your part in the decision-making process is going to be nil.
Still, insurance carriers and employers do keep records of these lawsuits, even and especially when nothing is ever filed in court. First, this serves as a database against patients who move around and try to create nuisance suits as a source of income (“living by screwing the man”). Second, it is a database against unscrupulous attorneys who serve those people.