To prove that a person acted negligently, one must show that he or she failed to exercise a degree of care that a person of ordinary prudence would have exercised under the same circumstances. To win a pharmacist negligence case, the plaintiff must prove four elements: duty, breach of that duty, injury or harm, and proximate cause of the injury or harm.
Duty
When one has a duty to another, he or she is required to behave in a certain manner for the benefit of that other person. Pharmacists owe a duty to their clientele to fill prescriptions correctly. This means that a pharmacist is required to make sure that the drug dispensed is exactly the same as the drug that was prescribed. A pharmacist also has a duty to dispense the correct drug in the correct dosage. In addition, the pharmacist is responsible for labeling the medication with the proper use instructions. Additional duties may include patient counseling and maintaining accurate patient drug profiles. Most states require pharmacists to review patient profiles for drug allergies and harmful interactions between medications. Other duties are not quite so clear and courts may vary from state to state in interpreting and enforcing them. For example, with a few exceptions, most jurisdictions hold that doctors, not pharmacists, are responsible for warning patients of a drug’s risks and side effects. On the other hand, a pharmacist may be found negligent for dispensing what he knew to be a lethal dose or for failing to warn of a drug’s adverse reaction with alcohol when he knew the patient to be an alcoholic. Therefore, a pharmacist may be held liable for failing to act on specific knowledge that he or she possesses regarding a drug’s dangers to a specific customer. In general, however, pharmacists are required to take reasonable steps to prevent foreseeable harm.
Breach
A pharmacist’s duty to a patient is breached when the duty is either not performed or performed incompletely or incorrectly. Filling a prescription with the wrong drug or dosage are breaches of duty, as is labeling the medication with improper use instructions. Other breaches of duty are less clear-cut. It may be difficult to determine the adequacy or correctness of patient counseling or drug use review. Testimony by expert witnesses may be required to establish the standard of care and whether the pharmacist’s actions conformed to that standard.
Injury or Harm
A plaintiff in a pharmacist negligence case must prove a resulting injury or harm. For example, a pharmacist who fills a prescription incorrectly may cause an overdose resulting in a fatal or life-threatening condition. Or, a pharmacist may substitute a generic drug for a brand-name drug without a doctor’s authorization. In this case, the pharmacist may be liable for negligence because the substitution caused an adverse or allergic reaction or was less effective than the drug that was prescribed. In many states, a claim for emotional injuries such as stress or anxiety must be based on actual bodily injury. Patients harmed due to pharmacist negligence may seek damages for loss of income, value of life or, if appropriate, compensation for emotional injuries.
Proximate Cause
In order to prevail in a pharmacist negligence case, the plaintiff must prove that her injuries were proximately caused by the pharmacist’s breach of duty. This element is not always easy to prove and often requires expert testimony. For example, it may be difficult to determine whether the patient’s symptoms were caused by an incorrectly filled prescription or by his or her underlying illness or condition. Or, a patient’s injuries may be caused by something other than pharmacist error. In one case, a pharmacist, with proper authorization, substituted a generic drug which contributed to the patient’s death. The court concluded that the drug, a fentanyl patch, had been defectively designed and that the pharmacist had violated no legal duty to the plaintiff.
Defenses
A pharmacist may avoid liability for negligence by disproving only one of the required elements- duty, breach, injury or cause of injury. Further, a pharmacist may argue that the plaintiff’s injuries resulted from an intervening cause and not his or her negligence. A pharmacist may also claim contributory negligence on the part of the plaintiff such as failure to follow instructions for use of the prescription drug.
Contact The Orlow Firm Today
If you or a loved one has been injured due to pharmacist negligence, consult an attorney as soon as possible. Quick action will help to preserve valuable evidence. The New York medical malpractice attorneys at the Orlow firm are well-versed in this complicated area of law and can assist you in exploring your rights and remedies.
Contact our law office in New York City to schedule a consultation by calling (646) 647-3398.
