Monthly Archives: October 2014

Get Your Own Malpractice Insurance

Tommy Tech takes a prescription for phenobarbital for an infant just being discharged from the hospital after having febrile seizures.  Tommy misreads the prescription’s sig “2 ccs BID” and prints a label that says “2 teaspoonsful twice daily.”  Pam Pharmacist does not catch the error and sells the mislabeled product, warning the parents that the infant will be very drowsy.

Heeding the words of Pam, the parents give the two teaspoonsful twice daily for 3 days before they get concerned enough to check with the pediatrician.  The doctor checks with the pharmacy and the error is revealed.  Infant is hospitalized again but treatment does not help.  The baby is severely brain damaged.  The parents sue Big Chain Pharmacy and Pam.

Pam does not have her own malpractice insurance, instead relying on BC’s coverage.  Her supervisor suddenly becomes very antagonistic toward Pam, though they previously enjoyed a good relationship.

Worse, the malpractice carrier is also unfriendly.  The interviewer demands a written statement regarding what occurred.  A few days after submitting it, interviewer contacts Pam and wants the statement heavily edited.  Most importantly, interviewer wants Pam’s statements regarding lack of help and the heavy workload removed.  Pam rewrites the statement as requested and realizes the statement now reads like the only factor involved was her failure to catch the error—it is an admission of guilt that Pam alone was responsible for what happened.

Pam re-submits her original statement and refuses to change anything.  The malpractice carrier becomes belligerent with her.  A few days later, Big Chain fires Pam.  Malpractice carrier sends her a letter by certified mail stating they no longer cover her.

 

To date, I have had ten cases like Pam’s.  Especially with errors that have devastating consequences, this too often is the situation (and it is not limited to chains, though one was involved here).  Fire the employee and refuse to represent the pharmacist in the ensuing legal action.

What follows is what pharmacists should not have to go through.  In cases like Pam’s, here is a pharmacist who has committed a terrible error and is probably suffering horribly over what she has done.  Now, on top of trying to live with what has happened, she is also faced with someone telling her she has no malpractice coverage.  In her mind, she now faces a multi-million dollar award to the patient and it is going to come out of her wallet.

Pam comes to me.  I immediately tell her to relax (something she cannot do; pharmacists get upset over small errors—we care about our patients—and it tears us apart when we make large ones).  But I do have some news that will help.  The malpractice insurance has to cover this incident because she was employed and covered at the time of the error.  Saying that she did not have coverage due to her termination is just an insurance trick.

Generally a letter to the malpractice carrier on Pam’s behalf reminding them of their obligation to cover her as she was employed at the time of the incident is all that is needed.  I do include an assurance that Pam will exercise her legal rights against malpractice carrier if they do not come through.  Most of these cases take me a couple of weeks up to about three months, but the pharmacist usually keeps me on hand until the case is resolved.  This is an added expense for Pam and others like her but not an unnecessary one.

How could Pam and others have avoided this pitfall?  Pharmacists, despite their employer’s coverage, should have their own malpractice insurance.  Period.  If so, when circumstances like the above arise, the pharmacist calls her own malpractice carrier as well as the employer’s.  Pharmacist now has an advocate for her position regarding what occurred and she can concentrate on putting her life (professional and personal) back together.  The carriers, per state law and provisions in the policy, must work together and resolve the matter. (It is not totally over—Pam will have to do interviews and possibly a deposition, possibly testify, but now the insurer-insured relationship is not that unfriendly)

Further, your insurer works for you.  The employer’s carrier works you too, theoretically.  But it also works for the employer, who pays the premiums.  So whose side do you think is going to get more attention from the carrier?  Yes, even your own carrier will push you to do certain things, such as settle, but with your own insurer you are the boss—you have the last say-so.

 

OK, now that you have your own malpractice insurance, let’s look at another issue.  On a regular basis, I get questions from pharmacists along these lines: “Can I fill a patient’s pill minder for them?”  “Can I change the doctor’s instructions if I think they are too hard to understand?”  “Mrs Smith likes her diagnosis written in Sharpie across the label of her Rx bottles.  Can I do this?”

My answer to this is always: review your malpractice policy.  If it says it is OK, it is OK.  If it does not, call your carrier and ask.  But do NOT accept a verbal affirmative and go from there.  Too many clients have been burned by an oral OK that did not pan out when an issue arose.  Have the carrier fax or mail you a statement that specifically answers your question in the affirmative and attach it to your policy.  Too many times pharmacists have told me that they gor the verbal OK, but when I insisted on a written statement the carrier would refuse to comply.  Remember the old saying, if it is not documented, you cannot do it.

Get your own malpractice insurance.

War Story

A “war story” is where one lawyer tells another about one of his cases.    This is the story of one of my early law cases.  Yes, the names have been changed along with every detail I could without losing the essence of what happened.  Still, I got the permission of those involved as there is simply too much in this tale to hide it in a satisfactory manner.

These participants are doing well and are still in practice today.  Should you recognize them, they ask you to do whatever you want short of bringing this up to them.  They lived with it long enough.

 

 

The car pulled up right in front of the independent pharmacy in this small Kentucky town.  Would Be Robber got out, crossed the short path, and went in the front door.  There, he pulled his gun out and waved it at the two customers and cashier behind the sales counter.  Would Be Robber walked behind the counter and threw his arm over the top of the prescription counter, aiming his pistol at a technician.  With his other hand, he threw a cloth bag at another tech and said, “Fill it up or people start dying.”

Tech picked up the bag and with a frightened expression on her face, turned to the pharmacist, Paul, and said, “With what?”  Paul pointed at the controlled substance painkillers on the shelf.

Paul then said to Would Be Robber, “Let’s all keep calm.  You are going to get what you want.  But please don’t point the gun at my tech.”

Would Be Robber shrieked, “Fill the bag or else I start killing!”

Paul held up his hands in a gesture of surrender.  “We’re filling it.  Just take it easy and please don’t—“

Would Be Robber pulled the trigger.  The noise was deafening in the small space but the pistol had bucked in his hand.  The bullet passed over the tech’s right shoulder and buried itself in the wall.  Would Be Robber swung his arm to aim again.  Paul jumped in and grabbed the gun with both hands, desperately trying to point the muzzle toward the ceiling.  A second loud bang! as the gun fired again.  Paul pulled backward with all his might trying to wrest the pistol from Would Be Robber’s grip.  Instead, Would Be Robber came over the counter.

Paul and Would Be Robber wrestled to the floor.  Later, Paul and the two techs would say the fight seemed interminable though it only lasted seconds.  A third bang.

Paul jumped up, some blood on him but unharmed.  The body of Would Be Robber went slack.  Pressure was applied to the wound and an ambulance was called, along with the police, but Would Be Robber was already dead.

 

I knew Paul and his wife Patty from my early days as a pharmacist.  Professional colleagues more than friends, we occasionally spoke but had drifted apart over the years, especially after I moved to Lexington to attend law school.  I had heard of the incident in the news but had not caught the name of the pharmacist. So, it was a surprise when Patty called.

She brought me up to date.  There was a police investigation into the attempted robbery and the county prosecutor had told Paul that while everything looked fine, that this was a justified shooting, Paul might still want to talk to a lawyer.  I immediately accepted the case, figuring that I could call on others more experienced if this turned out to be more than I could handle (I was less than 2 years out of law school and criminal matters were—and are—not my forte.)

Though I had heard of the matter, I asked her to put Paul on the phone so I could go over the incident in detail.  Patty hesitated, then asked if she could do that.  Then, I could talk to the techs and hear it from them.  She was speaking in a tone I did not like.

“Patty, what’s wrong?”

She broke down.  Paul, she related, was taking this very hard.  In his mind, he had killed someone; that it was justified as a self-defense act seemed to be of little to no comfort.  He had become a pharmacist to help people live longer and better lives, not to deprive someone of theirs.  He, was, Patty told me, reliving the incident a hundred times a day, trying and finding himself making wrong choices that resulted in Would Be Robber’s death.  Unable to work, Paul was headed for counseling to see if he could work things out.

(Today, we know a lot more about PTSD and how to help those suffering it get control of their lives again.  Almost 2 decades ago, this was not so.)

I wanted to speak to Paul but finally relented.  I spoke to both techs, heard their stories, and then called the county prosecutor.  He was a friendly guy who promised to be helpful.  “I’m coming to Lexington next week for a seminar,” he said.  “Let’s meet and I’ll give you the file.”

We met at the food court at the Civic Centre.  The file was not large and had in it little more than I already had gotten through my phone interviews.  County prosecutor pooh-poohed the idea of anything coming from this.  “Open and shut,” he declared.  “Justifiable in every manner.”  He thought I would not even need to make the trip to the small town.  Sure enough, I did not.  Based on the evidence, a couple of weeks later county prosecutor issued a formal statement that the case was being dropped.

Paul and Patty wrote me a modest check for my modest efforts.  I checked in regularly to see how Paul was doing.  Counseling was making inroads, Patty told me, but not much and not quickly.  Paul was still consumed with guilt.  A long road ahead.

Five months later, Patty called late one afternoon, sobbing horribly.  My first thought was that Paul might have killed himself.  No.  Counseling was still going but there had been a major setback: Would Be Robber’s family had filed a wrongful death lawsuit against Paul.  Once again he was in the depths of despair.  Would I handle the case?

D**n right I would.

Patty faxed over a copy of the Summons and Complaint, the two forms for filing a civil lawsuit and informing the party being sued that the lawsuit existed.  I got on the telephone and called county prosecutor, who roared for a couple of minutes in anger before he calmed down enough to promise the full weight of his office in support of Paul and me.  My next couple of phone calls I had to listen with the other ear.

Complaints are written to make a good case.  They exaggerate often, cite a lot of law, and make broad and horrible accusations.  This one was no exception.  It basically stated that Paul had ample opportunity to have handled the situation differently and several choices to choose from: backing away, taking the gun away without letting it fire again, give Would Be Robber what he wanted, etc.  In short, the Complaint called Paul a murderer.

My philosophy with a Complaint is to read it, then lay it aside and come back to it a half hour later, when a re-read will be more calm and methodical.  As usual, it worked pretty well.  I pulled out a legal pad and made notes for areas to research to counter the claim made by the family.

The next day I tried to call the attorney representing the family.  I was shoved off onto a newby paralegal who tried to bluster how his boss was going to “take that cold blooded killer pharmacist” for everything he has.  I pushed for the attorney himself, but finally got told that he was doing important things and I was not an important thing.

My main concern was getting this over for Paul as quickly as possible.  He did not need a lawsuit hanging over his head and it was holding up his recovery from the incident.  Plus, if that attorney had real knowledge of Paul’s feelings of guilt, of which I was sure he had an inkling, I could see losing this.  If I had any doubt, Patty was calling me at least once a day to remind me.

So I filed a Motion for Summary Judgment.  This is a pre-trial motion where the party seeking summary judgment is claiming there is insufficient evidence for the case to go any further.  The Motion must include a brief citing cases and reasons why the evidence is insufficient, and the party against whom the motion is being made responds with its own brief citing cases and reasons why the evidence is sufficient to go on to trial. The judge must weigh the briefs in the light most favorable to the party against whom the Motion is being made.  So, I was fighting an uphill battle, though I felt the evidence supported me.

I researched the law on self-defense and justifiable homicide In Kentucky and felt better immediately.  The law favored the person being attacked/assaulted far more than in most states.  Citing the law, I incorporated statements from the techs, cashier and two customers to support my claim.

I submitted the Motion by mail.  County prosecutor checked the court clerk’s office for me daily to make sure it arrived and was processed quickly.  It was.  The afternoon it arrived there I got a call from the clerk: the Motion was set for oral argument the next week.  Would Be Robber’s family’s lawyer protested: this was way too soon.  He needed time to write his brief in response.  The clerk relented but barely.  Oral argument was set for the day after his response was due to the court.  More protests followed but to no avail.  Somebody in small town was on my side, but was it the judge?

I stopped in on Paul and Patty on my way into town.  They did not suggest coming along and, seeing the shape Paul was in, I would not have wanted it.  He was every bit the wreck Patty had been describing over the phone.  He did not need to be in court—clients rarely are for motions.  They agreed to wait by the phone.

When I walked into the courtroom I was surprised to see the seats were almost full.  As I made my way to the front, people made derogatory comments and I got a couple of unfriendly shoves from sources I could not see, as many of them stood up and moved into the aisle to hinder my progress.

Suddenly, county prosecutor’s voice bellowed, “No, no, people.  He’s Paul’s attorney.”  Next thing I knew, the shoves turned to friendly pats on the arms and the comments turned to “Welcome.” “Give ‘em hell.”  “We’re counting on you.”  County prosecutor pushed through the crowd and escorted me to a table in front of the bar.  He wanted to gab until he saw how nervous .I was.  Then he and I went over and over my argument until court started.

Opposing counsel arrived a short time later.  This time, county prosecutor sent a deputy back to the door to prevent any welcome like I had first received.  County prosecutor and I stood to introduce ourselves.  We shook hands perfunctorily and exchanged names.  Then he uttered, “Waste of time” and turned away.  I took this with a grain of salt but county prosecutor went livid; he was not used to being treated this way.

We rose for the judge’s entrance.  He was in many respects exactly what you think of a judge: gray heaired, bespectacled, firm bearing.  He took his seat, took notice of the larger than normal crowd for a Motion Hour and sternly reminded those present that there would be no public displays.

The first case he called was mine.  As per protocol, I introduced myself, followed by opposing counsel who did the same.  The judge said, “This case has some notoriety and it best be dealt with.  Obviously,” he nodded at the people in the courtroom, “no use doing anything else.  Mr Cohron?”

“May it please the court,” I started, intoning the usual intro to any argument to a judge.  I knew better than to read my brief, so I had left my copy with county prosecutor.  I referred to a few notes in my hand but mainly spoke a practiced speech.  I opened by reiterating the events of that day, pointedly emphasizing the speed of the incident.  I ended that part of my statement by making sure the court was aware the statements not only came from concededly biased parties—Paul and the techs—but also from the cashier and two customers present at the time.  I then launched into the law regarding self-defense and justifiable homicide and connected the factual events with the law.  I ended with a conclusory statement that the evidence was substantially less than adequate for pursuing this case further.

The judge looked a little startled, as I had spoken for less than five minutes.  Early in my law career, I was not overly wordy, something that got cured with time.  For ten years as a pharmacist, everything that needed to be said had to fit on an Rx label approximately 2.5 by 3 inches.  I had learned to be concise.  This did not play well with law school exams early on—I got straight C’s my first semester.  When I received the Most Improved Student Award my final year I knew I was on my way to being tediously verbose.

The judge recovered quickly and turned to opposing counsel, who similarly seemed caught off guard by my brevity.  Opposing counsel took a deep breath and launched his offense.  Less than five minutes in the judge started looking bored, then unhappy.  I scooted off to my right and leaned one arm on the clerk’s desk, my recent back injury bothering me.  From this angle I was able to see the judge surreptitiously pull out part of a newspaper and start working on a crossword puzzle.  A minute or two later the judge caught my eye and winked at me!  I kept a straight face, and a lot of my nervousness disappeared.

Twenty minutes in, and the judge gave up the puzzle and openly glared at opposing counsel.  Opposing counsel was not dumb; he was delivering—despite in a long winded manner—a cogent, well-reasoned argument, but it was no good if the judge as unhappy..  He noted the judge’s displeasure and wrapped up a minute or two later.

The judge turned to me,”Mr Cohron, any rebuttal?”  Back and forth rebuttal is standard after both sides have made their statements.  But I had it in my mind that this judge would not like that very much.  “No, Your Honor.  Opposing counsel has made no argument that supports refusing my client a Summary Judgment.”

“I agree.  Summary Judgment is granted.  This case is dismissed.”  The judge banged down his gavel.

Opposing counsel started sputtering in indignation.  The judge stood and leaned forward, sticking his face into opposing counsel’s and shouted one word.  “No!”

People in the courtroom hooted and clapped.  The bailiff tried to tell them to quiet down and say “All rise” at the same time because the judge was on his feet and failed to do either very well.

The judge headed off his bench.  He said, “Ten minute recess.  Mr Cohron, come with me.”

My turn to sputter.  “Your Honor, I need to—“ and gestured out the main door.

“I know.  Come with me.”

He led me to his office.  As he circled his desk, he chuckled, “You nearly got me with that short argument.  I was prepared for at least ten minutes.  Good job, though.”  He shoved his telephone across the desk to me.  “Call Paul.”

Paul and Patty picked up on the first ring.  Of course they would be waiting by the phone, I thought, so would I.  I had good news to give but suddenly my heart was in my throat.  Too many thoughts about Paul and what he was going through.  It took me a few seconds to rasp,

“It’s over.  Done.  Case dismissed.”

 

It was a long time before either of them could respond.