On The Docket

David B. Brushwood, BSPharm, JD

Pharmacists and pharmacy technicians are humans, and humans make mistakes. Human errors can be reduced though system improvements, but they cannot be completely avoided. This is why health care institutions have departments of “risk management” rather than departments of “risk elimination.”

Malpractice insurance serves as a means to protect pharmacists and technicians from financial loss due to malpractice liability. A North Carolina pharmacy technician recently discovered that an employer’s insurance will not necessarily cover an employee’s malpractice liability.

Background

The pharmacy technician was employed by a staffing agency that assigned the technician to work at a compounding pharmacy. While working at that pharmacy, the technician was asked to compound an I.V. solution that was supposed to contain 10% dextrose. The resulting solution allegedly contained 60% dextrose. The technician allegedly “failed to secure a pharmacist’s pre-check to assure proper components and formulas were used, along with additional pharmacist’s checks during and after the compounding process.”

When the resulting solution was administered to the patient, he suffered “permanent brain injury.”

The family sued the pharmacy for damages, and this lawsuit was settled by the pharmacy. The pharmacy then sued the technician and the staffing agency for reimbursement of the amount paid to the family. The staffing agency and the technician claimed that the agency’s insurance company should defend the lawsuit brought against them by the pharmacy, and that their insurance company should pay any claim that might be awarded against them. The insurance company denied coverage and requested that the court address the coverage issue.

Rationale

The staffing agency had taken out two policies with the insurance company. Neither policy provided coverage of professional malpractice. One policy was a “business owner’s” policy and the other policy was a “commercial general liability” policy.

Both policies specified that they did not cover “bodily injury due to the rendering of, or failure to render, any professional service.”

North Carolina law specifies that “a professional service is generally defined as one arising out of a vocation or occupation invoking specialized knowledge or skills, and the skills are mental as opposed to manual.”

The staffing agency and technician attempted to persuade the court that the acts relevant to this lawsuit were manual rather than mental. They asserted that the technician “engaged in a manual task commensurate with the skills required of any other occupation for the production or sale of a commodity.”

In response to this assertion the court said, “The court disagrees and is surprised by the contention that the acts of a pharmacy technician, in compounding and dispensing I.V. solutions, are merely manual tasks that do not require mental skills. Moreover [the technician’s] failure to obtain several pharmacist’s checks before, during, and after her compounding of the solution were not manual failures, but instead were mental failures of a person who was professionally licensed and trained as a pharmacy technician.”

The court ruled that the staffing agency’s insurance policies did not cover the malpractice committed by the pharmacy technician.

As a result of this ruling, neither the staffing agency nor the pharmacy technician are insured for liability that may result from the lawsuit filed by the pharmacy. The outcome of that lawsuit is yet to be determined.

Takeaways

The key take-home message of this case is that pharmacists and pharmacy technicians should obtain their own individual malpractice insurance. Reliance on an employer’s insurance is ill advised. The employer may not have insurance, or may have the wrong type of insurance, or the policy may be outdated.

The interests of the employer and employee may not coincide, leading to a decision by the insurance company to cover the employer and not the employee.

There is an argument that having insurance invites lawsuits. If that is the case, then it is the insurance company’s problem.

The risks of liability in contemporary pharmacy practice justify obtaining individual insurance coverage. ■