On The Docket
David B. Brushwood, BSPharm, JD
A “wrong-drug” error in order processing is the most frequent type of pharmacy malpractice lawsuit. In some circumstances, a patient’s failure to recognize a wrong-drug error can be a defense to a pharmacy malpractice case based on what is legally referred to as “contributory negligence.”
The patient’s responsibility for detecting a pharmacy error is generally considered to be a question of fact for a jury to decide and not a question of law for a judge to determine. However, a federal court in Alabama recently refused to dismiss a pharmacy malpractice case in which the defendant pharmacy asserted the patient’s contributory negligence as a defense.
Background
The patient had received both carvedilol and hydralazine from the defendant pharmacy for many years. His lawsuit alleged that on one occasion, a refill of his carvedilol was incorrectly processed with hydralazine. He checked the label and saw that the information on the label was correct. He did not contact the pharmacy because he “trusted [the pharmacy] to give him the correct pills and he felt no need to verify what he had been given.”
He explained that “when he saw the pill had changed shape and color, he thought it was another generic kind of pill because they change colors, they change shapes.” He did not contact the pharmacy to verify that the contents of his medication vial were correct.
The patient alleged that he “felt dizzy and lightheaded, his chest began hurting, his heart was beating fast, and his blood pressure was above 200.” He was transported to the hospital, and he was treated for the effects of a hydralazine overdose. His lawsuit alleged that the pharmacy had negligently placed 50 mg hydralazine tablets in a vial labeled as 6.25 mg carvedilol.
The defendant pharmacy moved for dismissal of the case, contending that “because [the patient] knew there were risks associated with taking these medications incorrectly, he was contributorily negligent when he took the pills without trying to verify the medication was correct.”
Rationale
The court first noted that the defense of contributory negligence will support dismissal of a malpractice lawsuit only if “there is no genuine issue of material fact as to any element of that defense.” To establish contributory negligence as a matter of law, a defendant pharmacy is required to establish that the patient “(1) put himself in danger’s way and (2) had a conscious appreciation of the danger at the moment the incident occurred.”
The court noted that the pharmacy was essentially arguing that the patient “should have doubted the pill was carvedilol because he realized the pill looked different, even though he had just taken it out of a bottle labeled carvedilol; therefore, he should have known the pill was hydralazine instead of carvedilol—or at least he should have taken some action to confirm the pill was carvedilol.” The court observed that the legal standard to support dismissal of this case as a matter of law “is not whether [the patient] should have appreciated the risk but whether he consciously appreciated the risk.”
The court was unaware of any legal authority supporting a conclusion that, as a matter of law, [the patient] “having picked up a prescription he previously filled many times at [the pharmacy] was required to affirmatively question the pharmacy about why the appearance of his pills had changed.”
The pharmacy’s motion to dismiss was denied.
Takeaways
Pharmacists cannot rely on patients to detect and rectify dispensing errors. Order processing accuracy is a pharmacy responsibility.
Patients should be encouraged to ask their pharmacist if they have any questions about their medications, and all questions should be taken seriously.
If the appearance of a dosage form changes when a continuing supply is provided to a patient, such as a refill with a different generic product, then the patient should be informed of the change. ■