6/6/2002

Pharmacists, Technician Found Liable for Millions in Medication Error

Donna Young

A jury award of several million dollars in damages in a lawsuit brought against two Massachusetts hospital pharmacists and a pharmacy technician, but not the hospital, has some pharmacists concerned that professionals will be targeted as the "deep pockets" by people seeking large damage awards.

Robert Pavlan, a Massachusetts pharmacist and an attorney, said many states in the mid-1980s passed tort reform laws that set caps on the damage awards against nonprofit institutions. For example, the Massachusetts Charitable Immunity Statute discourages people from suing hospitals, churches, and other nonprofit institutions by limiting damage awards against those groups to $20,000. That cap, Pavlan said, is one of the lowest in the nation.

How a lawsuit turned personal. The pharmacist, pharmacy supervisor, and technician named in the lawsuit were sued by the parents of a child who received an overdose of medication in 1997 at Children's Hospital Boston.

The technician did not dilute a dose of enalaprilat, an angiotensin-converting-enzyme inhibitor, that a physician had prescribed to control the prematurely born infant's blood pressure. This alleged error by the technician, which resulted in a 750-mcg dose rather than the 6-mcg dose that had been ordered, was not caught by the pharmacist before the medication was dispensed.

Michelle Davis, a Children's Hospital spokeswoman, said that one of the institution's pharmacists reported the error, and the hospital then reported the event to the state health department, which conducted an investigation.

The family claimed the medication error caused the infant to suffer neurologic damage. But the hospital alleges that the child was born with the condition.

A Suffolk County jury awarded the family $7.1 million in damages in March.

While Children's Hospital escaped being named in the suit as a defendant, Davis said the hospital's malpractice insurer provided the defense for the pharmacists and technician under the hospital's liability coverage.

The hospital's insurer has filed posttrial motions, including one for a new trial judgment, Davis said.

At press time, the judge presiding over the case had not ruled on the motions.

Ramifications. Pavlan said the lawsuit has left many Massachusetts pharmacists uneasy and worried that they are "easy targets" for people seeking damage awards.

The lawsuit has caused some pharmacists, he said, to consider investing in more professional liability insurance.

Pavlan, who travels between Northeastern University School of Pharmacy in Boston and Western University School of Pharmacy in Pomona, California, to teach pharmacy law courses, suggested that pharmacists, to protect their assets from large jury awards, make themselves "paper poor" by transferring ownership of assets to a spouse or other family member.

But pharmacist David Brushwood, a professor at the University of Florida College of Pharmacy and an attorney, said the Massachusetts lawsuit should not be evaluated seriously until it has undergone the appeals process.

"There are all kinds of crazy things that happen at trial-court level, and oftentimes they get reversed by courts of appeal," he said. "All [the plaintiffs in the case] have now is a piece of paper saying these pharmacists and technician owe them $7.1 million. That doesn't get them $7.1 million. It's just a piece of paper. They are going to have to execute on that judgment in some way, and they are not going to be able to do it probably until at least the first appeal has been heard."

Brushwood said the Massachusetts law that protects hospitals and other nonprofit organizations from paying out large jury awards is inadequate because it fails to protect employees.

"The Massachusetts legislature enacted this legislation for a reason, and the reason was to limit liability," he said. "When the legislature limited the liability of nonprofit hospitals, they knew that nonprofit hospitals employed people. And if the law is that all you have to do is sue one or two of the employees of the hospital and not the hospital to get around the limitation, then there is no limitation. That renders the law without purpose. And most laws are supposed to be interpreted so as to have a purpose."

David W. Grauer, an Ohio attorney and a pharmacist, said most lawsuits filed in his state involving a hospital medication error generally name the hospital as a defendant, not just a pharmacist.

Ohio's laws require all parties involved in lawsuits to seek mediation before a case can be filed, said Grauer, who teaches pharmacy jurisprudence at Ohio State University College of Pharmacy in Columbus.

But, he added, pharmacists should carry an individual professional liability policy just in case they are named as a defendant and the case goes to trial.

Influence of liability coverage. Samuel A. Hoagland, an Idaho attorney and a pharmacist, said only about 10% of civil lawsuits go to trial. Most cases, he said, are settled out of court.

The amount demanded by a plaintiff and the amount actually recovered under a damage award are seldom the same, said Hoagland, who teaches pharmacy law courses at Idaho State University School of Pharmacy in Pocatello.

"There is usually a negotiation process where the attorneys take a look at how much liability coverage a defendant has, and it is generally settled from there," he said.

Attorneys are never allowed to discuss in front of a jury the amount a defendant has in liability coverage, Hoagland added. To do so, he said, would cause the case to result in a mistrial.

Douglas J. Pisano, who has a doctorate degree in law, policy, and society and is dean of the School of Pharmacy at the Massachusetts College of Pharmacy and Health Sciences at Worcester, said that, if a pretrial hearing determines that a case has merit, the defendant will usually attempt to settle.

"If the case has no merit, those who are being sued are the first ones to say 'Let's go to trial.' It's a strategic issue," he said. "It's very interesting how most people can be made right if the numbers look OK.

For instance, how much is it going to cost you to get better? There aren't a lot of cases that go to trial." Those few cases that go all the way to a court set the precedent, he added, and that influences the subsequent cases to settle.

Pisano said pharmacists should never rely on their employer's insurance alone.

"The company's insurance is the company's and they pay the premium; [a pharmacist] is the licensee," he said. "The protections of being an employee are no longer as well defined as they used to be. If it can be proven that you have not followed the policy procedure manual that your company, your hospital, has asked you to live by, then there is a good case for the insurance company not to cover you."

A hospital that is forced to pay on a jury award or settlement, Pisano said, in some cases sues a pharmacist or other employee to recoup the financial loss.

"There's more and more of that coming down the pike," he said.

Lawsuits from hospitals. Pharmacist Kenneth R. Baker, an attorney and vice president of Pharmacists Mutual Insurance Company of Algona, Iowa, said a pharmacist in Nebraska was countersued by her hospital after it was sued in two separate cases that involved the same type of medication error. The pharmacist had twice in one day approved the incorrect dispensing of 14% sodium chloride injection in place of the 0.9% product, Baker said.

One of the cases was settled by the hospital for $900,000. A jury awarded the second case's plaintiff $600,000 in damages. Afterward, the hospital sued the pharmacist to recover its $1.5 million, Baker said. The pharmacist had an individual policy that covered $1 million per case and $3 million aggregate.

"We think that [action] sent a bad message to everybody else working there," Baker said. "The physicians were quite nervous as well. What [the hospital] said was 'We are only going after you because you have insurance.' It's a problem with the excess policy. But generally, people are not going to sue you only because you do have a policy."

In another case in which both the hospital and a pharmacist were sued, Baker said, the hospital was in financial debt and filed for bankruptcy before the case was settled.

By the time the lawyers discussed a possible settlement, "there was nothing left but the pharmacist's individual policy," he said.

Protection. Pharmacist Joseph L. Fink III, a professor at the University of Kentucky and an attorney, said individual liability policies cover a hospital pharmacist who also works at a community pharmacy that might not have liability protection for part-time employees.

Fink said most individual polices are fairly inexpensive, with premiums generally priced between $100 and $200 annually.

"You are working one day per year to pay your malpractice insurance premium, and it gives you a lot of peace of mind," he said.

Pharmacists and technicians should carefully choose the type of individual liability policy that is right for them, Fink said.

A good policy, he added, should cover at least $1 million per claim, because "you could have multiple claims joined together out of one incident."

The best way to buy a policy is through a professional membership organization, Fink said.

"They will typically have their attorneys look through the provisions in the insurance contract to see that all the good stuff is there and all the bad stuff is minimized before they'll put their seal of endorsement on it," he said. Also, professional societies can offer a relatively low premium because insurers give them a group rate.

Fink said pharmacists and technicians should watch out for policies that include a right-to-settle clause.

"A right-to-settle clause essentially says the insurance company can settle the claim without consulting you," he said. "And that's bad because how does the general public perceive an out-of-court settlement? 'Oh, he knew he was going to lose.' Whereas for the insurance company, it is purely a financial decision: Is it cheaper to go to trial or cheaper to settle?"

Last, a policy should also include a provision that says the insurance company will cover a pharmacist or technician for any lost income because of time spent away from the job to participate in preparation of his or her defense, said Fink.

"Is it valuable for your insurance company to have you involved in the defense? You bet it is. You were there. They weren't," he said. "You can spend a lot of time working with your attorney preparing for trial and that will mean you're missing work."


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