When a pharmacy error is suspected, patients or their representatives will usually return to the dispensing pharmacy and present the dispensed medication to a pharmacist for evaluation. If the pharmacist believes an error may have occurred, a common practice is to promptly dispense an additional supply of medication, ensuring that no error is made with this second supply. The returned medication is then quarantined until evaluation of the alleged error. After a thorough evaluation, the medication is usually destroyed.
There is no point in retaining medication that has been returned to the pharmacy, as the medication cannot be dispensed to another patient. If an error has occurred with the original dispensing, then the returned medication may be adulterated and/or misbranded, further justifying its destruction.
A federal court in Nevada recently considered a case in which a pharmacy allegedly destroyed a medication that had been dispensed in error. The plaintiff sought sanctions against the pharmacy for “willful spoliation of relevant evidence.”
The patient had been prescribed valsartan. According to the court, the pharmacy erroneously gave the patient a medication vial that contained both valsartan tablets and lithium capsules. The patient ingested five capsules of lithium. The patient’s wife discovered the error and presented the vial to the pharmacy, where a pharmacist verified that the vial contained both medications.
The pharmacy allegedly quarantined the medication and eventually destroyed it, pursuant to company policy.
Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. A court has the discretion to impose sanctions for the spoliation of evidence. When a defendant destroys evidence in accordance with its internal policies, the defendant has not engaged in spoliation of evidence if the defendant had no notice of the evidence’s potential relevance in future litigation.
In this case, the court held that the pharmacy acted in accordance with its store policy to quarantine and destroy returned medications. However, the court also held that the return of an incorrectly dispensed medication triggered a “duty to preserve evidence.” The pharmacy was on notice of potential future litigation, based on the filing of an incident report.
While finding that the pharmacy “had a duty to preserve the evidence,” the court nevertheless held that the plaintiff “faces no prejudice” from the spoliation. The plaintiff sought to prove that a dispensing error had occurred, leading to damages from a mistakenly dispensed medication. The pharmacy admitted that a dispensing error had occurred. The pharmacy disputed that lithium toxicity caused harm to the plaintiff.
The court noted that the pharmacy’s admissions and the pharmacist’s testimony provide the necessary information for the plaintiff to show that an error occurred. “The court knows of no other information plaintiff might glean from having the actual bottle and pills in hand.”
The court declined to impose spoliation sanctions, concluding that the plaintiff’s inability to show the vial containing erroneously dispensed medication did not prejudice the plaintiff’s ability to prove the entirely separate issue of causation.
Based on the result of this case, it is important for every pharmacy to have a policy on the destruction of returned medication.
If a returned medication was dispensed in error, it can be destroyed, as long as the pharmacy is willing to admit that the error occurred. If there is controversy over whether an error has occurred, then the returned medication should not be destroyed. Otherwise, the pharmacy may be subject to sanctions for the spoliation of evidence.
Based on: Burton v Walgreen Co., 2015 U.S.Dist LEXIS 90581 (D. NV. July 10, 2015