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$7.1M Mass. Infant Drug Error Case Award Stokes Fears Of Pharmacist Vulnerability, Preparedness For Lawsuits

Smiling young doctor holding a beautiful newborn baby.A March 2002 $7.1 million judgment against two Massachusetts hospital pharmacists and a pharmacy technician, but not the hospital itself, in an infant medication error court case raises concerns among those in the field about their vulnerability and lack of preparedness for such future patient lawsuits.

In the mid-1980s, states passed tort reform laws that capped the amount of damage awards against nonprofits, a Massachusetts pharmacist and attorney said. In his state, the Massachusetts Charitable Immunity Statute prevents its residents from seeking damages from hospitals, churches and other nonprofits. Awards from groups are limited to $20,000 in Massachusetts, he said — among the nation’s lowest.

In the Massachusetts case, the parents of an prematurely-born infant, who overdosed on medication in 1997 at Children’s Hospital in Boston and suffered neurological damage, sued the pharmacist, the supervisor and pharmacy technician.

The charge was that the pharmacy technician did not dilute the medication in question, enalaprilat, to maintain the baby’s blood pressure. As a result, the child received a dosage of 750 mcg instead of the six mcg he was prescribed. The pharmacist did not catch the error.

A Children’s Hospital spokeswoman said that one of their pharmacists reported the mistake and the hospital then informed the state health department, leading to a probe.

The parents blamed the error for their child’s brain damage but the hospital maintains the infant was born with his affliction.

A Suffolk County jury found in favor of the parents, awarding them $7.1 million.

The hospital was spared the lawsuit but its spokeswoman said its malpractice insurer gave the defense for the pharmacists and pharmacy technician under the hospital’s liability coverage. The insurer filed for a new trial judgment, she said.

The Massachusetts pharmacist and lawyer said the suit worries pharmacists, having them believe they may be sought out more frequently for court settlements. Many are pondering securing more liability insurance.

A pharmacy law instructor in Northeastern University School of Pharmacy in Boston and Western University School of Pharmacy in Pomona, Calif., pharmacists are contemplating protecting their finances from such suits by transferring their wealth and holdings over to their spouses or relatives.

Another pharmacist who is also professor at the University of Florida College of Pharmacy and is an attorney said that the Massachusetts law aimed at protecting hospitals and other nonprofits is insufficient because it does not cover staff.

A Ohio pharmacist, pharmacy law instructor at Ohio State University College of Pharmacy in Columbus and attorney attorney said that, in this state, usually hospitals are named as defendants and not just pharmacists in lawsuits. Under Ohio law, all parties in suits are required to seek mediation first.

Still, he recommends pharmacists to carry individual professional liability insurance in case they are named in a lawsuit and a case goes to trial.

Another pharmacist, pharmacy law instructor at Idaho State University School of Pharmacy in Pocatello and Idaho attorney said that just 10 percent of civil suits go to trial. The majority are settled out of court. He added that the sum sought by a plaintiff and the actual awarded amount are almost always different.

A second Massachusetts lawyer said that, if it is found that the court case has merit, the defendant will seek to settle. If not, however, those being sued will ask to go to trial.

The few cases that go to trial set precedent, influence other cases to settle, he said.

The lawyer also said that pharmacists should never rely on their employer’s insurance. Companies pay the premium in such an insurance policy and the pharmacist is just a licensee. If pharmacists are found not to follow procedure, then they may not be covered by the insurance company, he said.

Additionally, a hospital charged with a jury award or settlement will sue a pharmacist or another employee to regain the financial loss, he said. And this practice is increasing in frequency.

One pharmacist, attorney and vice president of a pharmacist mutual insurance company in Iowa said that a pharmacist in Nebraska was once sued by her hospital after it was sued in two cases involving a similar drug error. The pharmacist had repeated the mistake twice of approving a 14 percent sodium chloride injection instead of a 0.9 percent product.

The hospital settled one case for $900,000 and the second for $600,000, he said. Then, the hospital sued the pharmacist for its $1.5 million loss. The pharmacist had an insurance policy covering $1 million per case and $3 million total.

In a separate case in which both the hospital and a pharmacist were sued, the hospital was in debt and went into bankruptcy before the case settled. Literally, all that was left, financially, was the pharmacist’s insurance policy.

One pharmacist, professor at the University of Kentucky and an attorney said individual liability policies cover a hospital pharmacist who also works at a community policy that does not provide liability protection for part-time employees. These policies, he said, tend to be expensive with premiums ranging from $100 to $200 per year.

He advises pharmacists and pharmacy technicians to choose the type of policy that suits them best. A good one covers at least $1 million per claim, especially for multiple claims under one lawsuit, the pharmacist said.

He added that the best means is to buy a policy through a professional trade organization. Members always benefit from a low, group rate and an attorney who will pore over every detail of an agreement to ensure that it serves his or her clients.

He also cautions against policies with a right-to-settle clause. Such clauses allow an insurer to settle without consulting pharmacists. Settling out a court may reflect poorly on a pharmacist or pharmacy technician as members of the public following the case are apt to believe he or she would have lost the court case. An insurer faces no such conflict as the company decides whether it costs less to go to trial or to settle. An insurance company’s decision is purely based on finance, he said.

A solid policy will also provide that an insurer cover a pharmacist or pharmacy technician for any lost revenue for time spent away from work to defend himself or herself during a trial, the attorney said.

(NOTE: As a regular feature, PharmPsych.com/Courses is offering up summaries of pharmacy malpractice court cases. Each summary will detail the narrative for the suit, the reasons, outcomes, financial compensation and settlements involved. The summaries will also discuss the lessons learned by medical professionals.)

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Last updated December 2014

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