On The Docket
David B. Brushwood, BSPharm, JD
Pharmacists are the best experts on medication safety in an institutional setting. When a nursing error is alleged to have occurred, a medication safety pharmacist will likely be asked to provide testimony in legal proceedings that may arise. Although trials and hearings are designed to seek a fair result, they are adversarial in nature, and expert testimony may not accurately reflect the entirety of an expert’s opinions. A lawsuit from Tennessee serves as an example.
Background
A nurse made an error when a physician ordered I.V. “Versed” and the nurse typed the letters “VE” into an automated dispensing unit (ADU). The nurse mistakenly withdrew vecuronium by overriding the ADU. The nurse did not check the label on the medication, and she administered it to the patient believing it to be midazolam. The nurse did not monitor the patient after administering the drug because she was told by another nurse that monitoring was unnecessary. The patient died due to the erroneous administration of I.V. vecuronium.
The nurse simultaneously faced criminal prosecution and administrative action to revoke her nursing license. During the license revocation hearing, a pharmacist who directed the hospital’s medication safety program testified that nurses may override the ADU but said that this authority comes with an “expectation in an override situation that the nurse or clinician is verifying the order.” The nurse admitted that she had not met this expectation. The board of nursing revoked the nurse’s license, and the nurse appealed.
During the pendency of this appeal, the nurse was convicted of negligent homicide in a criminal court. While she was awaiting her criminal sentencing, the nurse learned that many health care professionals had written letters of support for her to the criminal court judge.
One such letter had been written by the testifying pharmacist, who urged the court to “offer grace in sentencing” to the nurse. The pharmacist offered several reasons why the nurse’s error did not amount to “intentional neglect.” The pharmacist explained in the letter that “confirmation bias” may have contributed to the nurse’s administration of the wrong drug and that “confirmation bias” was a “critical piece of evidence” that “was never brought up at the hearing” although the pharmacist “desperately wanted it to be.”
The nurse petitioned the court in the licensure revocation case to remand that case to the board of nursing for reconsideration, based on the pharmacist’s letter.
Rationale
The court explained that the information in the pharmacist’s letter could have been elicited during the pharmacist’s testimony at the license revocation hearing or through deposition, but it had not been. At the hearing, the nurse’s attorneys had a full opportunity to question the pharmacist regarding nursing practices with the ADU, as well as the pharmacist’s opinions concerning confirmation bias, but they had not done so. For this reason, the court concluded that the license revocation hearing had not been unfairly prejudicial, and the nurse’s petition was denied.
Takeaways
Testimony from pharmacists can be critical in criminal trials and in licensure revocation hearings, but daunting legal formalities can get in the way of complete explanations of the circumstances involved with medication errors.
In a formal legal proceeding, pharmacists must answer the question that is asked of them, but most judges will allow an expanded explanation of the answer if the explanation does not stray far from the question that has been asked.
Pharmacists who are called to testify should insist on being adequately prepared for testimony by an attorney who represents the interests of the defendant health care institution or health care professional.
As this case illustrates, there will be no do-overs to clarify incomplete testimony if lawyers don’t ask the right questions. Medication administration can be more complicated than it seems, and lawyers need to have these complications explained to them so that they can ask the right questions of testifying experts. ■