In short, yes, suing pharmacies for negligence or medical malpractice is possible. First, it is important to note that a pharmacist is a medical professional by the definition of the law. Similar to any other medical professional, a pharmacist, along with the pharmacy that they work for, may be liable for damages suffered by a person as a result of medical malpractice.
Medical malpractice law is the set of laws that allow an injured patient to bring a legal claim against a negligent medical professional. Medical malpractice laws also allow patients to recover damages for the harms that were caused by the professional’s substandard conduct.
Specifically, medical malpractice occurs when a medical professional, such as a pharmacist, and/or a healthcare organization falls below the standard duty of care that is required of them when they are managing, diagnosing, and/or treating a patient. It is important to note that the deviation from the standard duty of care must result in an injury in order for it to be considered medical malpractice. The deviation from the standard duty of care that is required of all medical professionals is generally the result of an act of negligence by that medical professional.
For example, in the case of a pharmacist giving the wrong medication or printing the wrong directions for the use of medication, if that negligent act falls below their duty of care and causes an injury to a patient, such negligence may result in a medical malpractice suit.
However, the patient will first need to prove all of the elements necessary to be successful in their medical malpractice claim. In such cases, the injured person, known as the plaintiff, may be able to prove that the pharmacist’s negligent actions directly contributed to the plaintiff’s injury or illness.
In fact, most often when a patient goes to the doctor or pharmacist for treatment, they often already have a pre-existing condition. Then the negligence of that medical professional merely increases or accelerates their illness. For example, if a patient has a condition that if not treated properly could be a life-threatening condition, then a pharmacist’s negligent actions may result in further exacerbation of that condition.
Thus, even though the negligence of the pharmacist did not cause the initial condition, medical malpractice laws can still hold the pharmacist responsible for worsening an existing condition. In short, the law recognizes that the pharmacist decreases the person’s ability to properly recover. As a result, the pharmacist or pharmacy may be on the hook for any medical bills or other similar expenses that arose as a result of their negligence.
What Legal Responsibilities Does My Pharmacist Have?
As mentioned above, pharmacists, similar to other medical professionals, have a duty to exercise a certain level of care to prevent injuries to patients. As far as the exact level of care, pharmacists are specialists and are expected to conduct themselves in a manner that is consistent with a reasonable professional that has similar education and training.
This means that a pharmacist must exercise good judgment concerning a patient’s use of medications, drug interactions, and refills. Then, if they fall below that duty of care, the pharmacist may be sued for malpractice, if their negligence caused an injury to occur to a person.
Specifically, a pharmacist and pharmacies both owe a duty of care to their customers to fill all lawful prescriptions that are brought to them without unduly delay. This means that so long as the prescription is from a valid and licensed doctor, the pharmacist must fill the prescription for the customer. If they cause a delay, and the customer suffers damages as a result of the delay, the pharmacist or pharmacy may be on the hook for the customer’s damages.
Pharmacists and pharmacies also have a duty to correctly fill the prescriptions and take further measures to prevent errors from occuring with the medicine that is filled. For instance, an error in directions of use could result in a person overdosing or not getting the correct dosage necessary to treat their condition or illness.
What Are Some Examples of Pharmacist Malpractice?
There are numerous ways in which pharmacist malpractice can occur. For instance, the following situations may rise to the level of pharmacist malpractice:
- Dispensing the wrong dosage of the drug to the customer;
- Dispensing the completely wrong drug to the customer;
- Failing to print the correct dosage information and directions on the medication;
- Overlooking a potential drug interaction with the prescription that was filled with another prescription;
- Failing to exercise proper judgment when filling the medication; and/or
- Failing to counsel the patient regarding side effects and drug interactions.
As can be seen, there are numerous situations that may arise that could result in a pharmacist making a negligent error filling a customer’s prescription. In fact, statistics show that up to ten percent of all medical prescriptions are filled erroneously. Further, there are many medications that have similar sounding names, but often have entirely different uses. In addition, almost every medication comes in different doses, a pharmacist may commit malpractice if they put the wrong dosage in the prescription and that leads to an injury.
One of the most common types of errors in pharmacist malpractice cases is mislabeling or misbranding the dosage and usage information on the prescription, i.e. the proper medication is dispensed, but with incorrect instructions. Mislabeling the directions on the medication may lead to the patient inadvertently taking the medication in a way that causes them harm, including:
- The patient taking the medication too frequently;
- The patient not taking the medication frequently enough;
- The patient taking too much medication;
- The patient taking too little medication;
- The patient not being aware of a warning that should have been present, such as how the medication interacts with other medications; and/or
- The patient not being aware of certain side effects of taking the medication.
What Do I Have To Show To Successfully Win a Medical Malpractice Claim Against a Pharmacist?
In order for a person to succeed in a lawsuit for pharmacy malpractice, they must prove all of the necessary elements for their civil claim. There are several elements which must be met before medical malpractice against a pharmacist can be established. In order to prove medical malpractice liability, a plaintiff must be able to prove all of the following:
- That the pharmacist owed the customer a duty of care to act reasonably and under the medical standard of care;
- That the pharmacist failed to meet the proper standard of care, meaning their duty, because they were negligent in filling the customer’s prescription or avoiding mistakes.
- In other words, they breached the duty of care that they owed to that patient;
- That the pharmacist’s negligent conduct was the actual and proximate cause of the customer’s injury; and
- That the injury resulted in the patient suffering measurable damages.
Additionally, if the lawsuit for pharmacy malpractice is specifically filed against an organization or its clerical staff, it must be shown that the medical staff was trained and/or supervised negligently.
What Defenses Would a Pharmacist Have against a Malpractice Lawsuit?
There are several legal defenses that a pharmacist to a medical malpractice lawsuit may be able to assert, including:
- Statute of Limitations: A person’s time limit in which to file a specific civil claim is known as a “statute of limitations.”
- Many states require that a plaintiff file a medical malpractice action within two years of the incident.
- As such, if this time limit has expired, the plaintiff will be barred from bringing the lawsuit and will lose their chance to recover for their injuries. It is imperative to note that these time limits will vary by jurisdiction;
- Contributory Negligence: In states that follow the contributory negligence theory, if proven, this defense will completely prevent a plaintiff from recovering from their injuries.
- The defendant must show that the plaintiff’s own negligent conduct contributed to their injuries, as such that the defendant cannot be held solely responsible for the harm. States that apply the doctrine in full will bar a plaintiff from recovering.
- However, if the state follows the modified comparative negligence theory, plaintiffs who are less than 51% at fault for their injuries may still be able to recover some amount of reduced damages; and
- Lack of Proof or Fault: If the plaintiff fails to prove that the pharmacist fell below the standard duty of care, or cannot show that they were the ones responsible for the patient’s injuries, this may also serve as a defense to a medical malpractice claim.
What Can a Patient Collect for a Successful Lawsuit?
When suing a pharmacist for malpractice, a plaintiff is typically seeking monetary damages. In fact, monetary damages are the most typical damages for pharmacist negligence. Monetary damages are a monetary amount which is intended to compensate the plaintiff for their injuries.
Monetary damages may arise from a plaintiff’s medical bills, medical treatment necessary to correct their illness, pain and suffering, or even future medical bills.
Do I Need a Personal Injury Attorney?
If you have been harmed as a result of pharmacist malpractice, it is in your best interests to contact an experienced personal injury attorney immediately. An experienced personal injury attorney will be able to help you understand your legal rights and options according to your state’s specific medical malpractice laws.
Additionally, an attorney will also be able to help you determine the party responsible for your injury, and initiate a civil lawsuit against them on your behalf. Finally, an attorney will also be able to represent you in court, as needed.
