On The Docket
David B. Brushwood, BSPharm, JD
In a recent Louisiana case, the court considered whether a health information technology (HIT) company should be held liable for failing to detect prescriber errors in the prescriptions that the company transmits to pharmacies.
Background
The plaintiff alleged that as a patient he was prescribed an “inappropriately high dose” of levofloxacin by a nurse practitioner (NP). The NP prescribed 750-mg tablets of levofloxacin to be taken twice daily for 21 days. The patient referenced a medical website that stated the proper dose for him would be between 250 mg and 750 mg once daily.
The patient allegedly suffered acute kidney failure and tendinopathy caused by the overdose. He sued the NP, as well as the HIT company, and the pharmacy that dispensed the medication. The present case deals only with the HIT company’s motion to dismiss.
The patient contended that the HIT company should be held liable for negligence because it had:
- Failed to exercise reasonable care.
- Transmitted an inappropriately high dose of levofloxacin.
- Failed to block the transmission of an inappropriately high dose of levofloxacin.
- Failed to implement any warnings to the prescriber that the wrong dose had been ordered.
- Transmitted dosing directions that would cause any patient to experience severe and disabling adverse effects and even death.
The HIT company’s motion to dismiss argued that liability for negligence can be established only when there is a “breach of a specific standard of care that is based on a legally cognizable duty.” The company claimed that it had no legal duty under the facts of the case.
Discussion
The court noted the basis of the patient’s case was that the harm caused by the overdose “could have been prevented with simple safeguards” such as “flagging or halting transmission of the allegedly unsafe prescription.”
The court noted further that the fact that the HIT company “could have implemented such safeguards does not mean that it had a duty to do so.” The court concluded that the patient “had not pointed to any specific standard of care which could form the basis of any such legally cognizable duty.”
The court acknowledged that the HIT company’s stated corporate purpose is “to insure we are increasing safety, enhancing efficiency, and lowering cost,” and that the company “was aware that nurse practitioners may negligently prescribe the wrong medicines and dose.” However, the expressed purpose of increased safety does not specify a standard that establishes a duty of care, nor does the alleged knowledge that health care providers may prescribe negligently.
The HIT company’s motion to dismiss was granted based on the “no duty” argument.
Takeaways
The NP and the pharmacy remain as defendants in this case. They may or may not eventually be held liable.
What this case clearly establishes is that recognized legal duties of health care professionals cannot be shifted to, or even shared with, technology companies. Health care continues to be an activity conducted by people and not by machines. While technology can be a tremendously useful tool for clinical practitioners, it facilitates, but does not replace, human judgment.
The HIT company’s “no duty” argument in this case is remarkably similar to the “no duty” argument that has been asserted by pharmacies over the past several decades in the face of patient allegations that a pharmacist was negligent for failing to detect and rectify a prescribing error such as a drug overdose. Most courts have accepted a “no generalized duty” argument by pharmacies, but they have carved out numerous exceptions under which the “no duty” argument is inapplicable, and under which pharmacies can be held liable.
One such exception is an “obvious error on the face of the prescription,” which is the allegation made by the patient in the present case. Perhaps negligence litigation against HIT companies will follow a path similar to that of pharmacy, with recognized exceptions to the “no duty” rule. ■