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.

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