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Dismissal Of Michigan Drug Counseling Suit Shows Need To Add Expert To Some Plaintiffs’ Court Cases

CB065532The dismissal of a Michigan pharmacy malpractice lawsuit that stemmed from the alleged lack of counseling on a dangerous drug’s side effects or alternatives to the drug demonstrates the need for patients to include a medical expert and accompanying documentation when building a court case in some states.

A trial court dismissed the pharmacy suit, Bursley v PGPA Pharmacy, Inc., 2012 Mich. App. LEXIS 2226 (November 8, 2012), and its dismissal was uphold by a state appellate court.

The trial court argued that the plaintiff — the patient who suffered side effects from a prescribed drug — did not file an affidavit of merit signed by a qualified expert to support that the allegation that malpractice occurred in her case, as required under Michigan law.

Michigan is one of many states nationwide that have implemented tort reform measures over the decades that make it more challenging for patients to sue healthcare professionals. Researchers say that this is because such lawsuits may prove to be not based on sound evidence or reasoning, time-consuming and expensive.

The state of Michigan chose to use the affidavit of merit to impose the burden of proof on the plaintiff or initiator of the lawsuit.

In the Bursley case, a pharmacist, by definition under Michigan law, qualifies as a healthcare professional and, therefore, a plaintiff is required to bring an affidavit of merit into his or her court case.

Specifically, the patient in question was prescribed lamotrigine, a brand of medication meant to prevent or check epileptic seizures and is also known as an anticonvulsant. Her doctor did not speak with her about alternatives to lamotrigine or the adverse reactions to the drug.

She filled the prescription at the pharmacy in question where she accused staff of not informing her of a boxed warning in the drug’s labeling, not notifying her of the drug’s adverse reactions and being “two papers folded in half stapled to the bag.”

Rather, she was warned about dizziness and “ … skin rash and painful urination.”

The patient signed a form indicating that “consultation was offered,” but she said that she could not recall having done so or being offered counseling. The court agreed, stating that the form did not prove that instruction or advice was offered to her.

The patient began to cultivate symptoms connected with Stevens-Johnson syndrome, a rare disease caused by reaction to the use of antibiotics or infection. She also developed toxic epidermal necrolysis, a rare, deadly skin condition also caused by a reaction to certain drugs.

The patient was placed in the hospital in an intensive care burn unit for nearly four weeks. She suffered severe, disabling and permanent damages to her skin and overall health.

As a result of the damage, she filed a malpractice suit against her doctor, the clinic in which he was employed and the pharmacy issuing the prescription. The pharmacy filed for dismissal because the patient failed to obtain and file an affidavit of merit as part of her court case.

In her appeal, the patient argued that an affidavit of merit was irrelevant because she sued a pharmacy, which is not a healthcare professional. She pointed to court cases finding pharmacists not to be health professionals and not held to regulations for professional liability claims.

The pharmacy countered that the suit was a claim of wrongdoing by a pharmacist, who is, by definition, a healthcare professional.

Researchers comment on the case that pharmacists, not pharmacies, are healthcare professionals. They say the affidavit of merit prevents lawsuits from coming to trial when a medical expert can’t be found to testify that malpractice took place.

Some malpractices case raise difficult scientific questions beyond the comprehension of layman juries who need expert witnesses to explain healthcare and regulations. If experts can’t be found for such cases, then, researchers argue, these suits should never be brought to trial.

In a suit, researchers say, for example, involving a technical error in providing an incorrect drug while a correct one was ordered, expert testimony is not needed because a lay person can understand the issues involved.

However, by contrast, in a suit involving science and the lack of warning from a pharmacist, they argue that the court case is difficult enough to warrant the presence of a medical expert and attendant documentation.

(<strong>NOTE</strong>: 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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<strong>Last updated December 2014</strong>

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