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Pharmacy Malpractice Settlements
Vol. No: 28:01 Posted: 1/15/03
Pharmacy Malpractice Settlements
Jesse C. Vivian, B.S. Pharm., J.D.

 

Most cases published in state court proceedings against pharmacies or pharmacists claiming professional negligence or malpractice are decided by a Court of Appeals or the state Supreme Court. The proceedings of trial courts are hardly ever published in readily available formats. Although the proceedings are considered "public records," getting access to them is difficult. Which cases are in which trial courts in which counties and states is not readily available information. Not even the internet or online databases have addressed the issue in-depth, and state and local governments have other priorities in these tough economic times.

This makes it difficult for the public and even attorneys to find out what is going on with cases heard at the trial level. Also, it is well known that 80%-90% of all cases filed are settled before or during trial and never reach the verdict stage. Even when verdicts are entered, post-trial negotiations can lead to a different settlement amount so that parties avoid lengthy appeals. Compounding the problem even more, the full facts of a settlement may not be part of a public record. So even if someone knew in which court to look for a particular case, there may be no information about how the complaint was disposed of.

Often, settlement agreements contain confidentiality clauses that prevent the parties from disclosing the terms of the settlement--especially the amount, if any, paid to the plaintiff in exchange for dismissing the case or settling it before or after a verdict is rendered. Courts permit confidentiality agreements to encourage people to settle their differences and avoid the costs of holding a trial or taking a case up on appeal. Defendants often encourage or require settlement amounts to be confidential to discourage others from suing. Insurance companies like privacy clauses because they save money in the long run. If nobody knows how much the company paid out in a particular claim, others who follow with similar claims will not know how difficult it may be to collect any damages. It makes it harder to pick the "easy targets."

Assume a pharmacist working for a large chain store corporation makes a mistake and dispenses 5 mg warfarin instead of the prescribed 2.5 mg dose. Assume the patient dies from complications caused by the overdose and the estate sues the pharmacy and pharmacist in a local county trial court for malpractice. Assume the case is assigned to a particular judge. All the parties would like to know several things before investing time and large sums of money preparing the case for trial. It just might be less expensive for the defendants to work out an early settlement agreement and save the costs of discovery, depositions, hiring expert witnesses, and paying all the lawyers' hefty fees and court costs. It's a bit like assessing the cost of doing business or doing a risk-benefit analysis. If the defendants are going to have to pay money one way or another--to the plaintiff for settlement or to the lawyers and others who defend them--figuring out in advance how to pay the least amount makes good economic and business sense.

One of the key pieces of information is how have other, similar cases been resolved in the past? Certainly any opinions on point published by Courts of Appeals or state Supreme Courts will be useful because they often have binding precedents trial court judges must follow. If any of those cases involve verdicts, the amount awarded to the plaintiff will be useful in evaluating the case. But given that most cases settle, the published cases, if there are any in the state, may not be the best indication of how much the case is worth. If there are no local published cases, looking to similar cases in other jurisdictions may or may not be useful because they will not be binding on the trial court judge. Another missing piece of information is, how has the particular judge handled past similar cases? Is the judge conservative or liberal? Does he or she "twist arms" to encourage quick settlements or allow long delays and protracted trials?

Finding Case Information
While government agencies have not had the resources to put the information online, others may be filling the void. Some plaintiffs' lawyers want to publish their prior successes and exploits online to attract more clients. Use any search engine, type in "pharmacy malpractice" and approximately 20,000 web pages will be identified. Some of those sites will be useful. (This is a new expense to be figured into the equation: paying someone else or investing your own time to ferret out the useful pages.)

Examples: A few examples might help illustrate.

Case 1: Malpractice.com, a site that promotes plaintiffs' lawyers, reports a lawsuit against the K-mart corporation and a physician.1 The patient was diagnosed with deep vein thrombosis, which causes pulmonary embolism. A physician prescribed sodium warfarin in a 2-mg dose. The patient was taken to a hospital when he was found lying in bed in a pool of blood. At the hospital he was diagnosed with an intracerebral hemorrhage. He died from the injuries. A later check of his medication bottle revealed 5-mg pills.

This case went to trial. Some jurors had seen a local news series about pharmacy errors. K-mart moved for a mistrial but the trial court judge denied the motion. The jury then found K-mart liable in the amount of $900,000. However, the jury also found the deceased was also negligent in not noticing the different colors of the drugs and deducted 10% of the verdict, reducing the total damage award to $810,000.

K-mart appealed. The Court of Appeals reversed the jury's decision and ordered a new trial. What is interesting about this case is that the appellate court decision was published.2 But what was not published or known about until malpractice.com put it on the web site is that before the case was re-tried, the parties settled for $700,000. This is highly useful information for the original scenario being considered. But the case was tried in Illinois and might not have as much impact if the case is in another state.

Case 2: Malpractice.com reports a case involving a child born at the defendant hospital in April 1998. He was delivered prematurely by emergency C-section and weighed 1 lb. 14.8 oz. at birth. He was administered an overdose of sodium chloride for 2 days, resulting in hypernatremia and brain infarctions in the thalamus and basal ganglia. He also experienced spastic quadriparesis, vision problems, seizures and the need for a gastronomy tube. Apparently a physician wrote an order for Dextrose 12.5 with 6 mEq of sodium chloride per kg to be infused at 6 cc's per hour over 24 hours. The pharmacy produced an IV bag that contained 43 mEq of sodium to be infused over 8 hours. Neither the physician nor the nursing staff reviewed the pharmacy preparation before administering it. The hospital organization settled the claim for $13.5 million in August 2002.

Case 3: Another source for jury verdicts and settlements is injuryboard.com. One case it lists involves a hospitalized four-month-old boy given undiluted Enalaprilat, 100 times the proper amount. The infant's parents alleged the overdose of the hypertension drug caused severe brain damage that left him mentally retarded. Defense attorneys argued that the boy, born prematurely, had neurological damage before the medication was given. A jury rendered a verdict against three former pharmacists at a Massachusetts hospital, requiring they pay the family $7.1 million.3

Case 4: One web page found in this search revealed an attorney's office reporting on a pharmacy malpractice settlement involving a Marietta, Georgia, pharmacy that dispensed the high blood pressure medicine Tenex instead of the Talwin prescribed to treat the plaintiff's migraine headache. The physician called the prescription into the pharmacy the day before the plaintiff picked it up. A pharmacy employee had mistakenly placed the Tenex tablets into a prescription bottle marked for Talwin and the pharmacist failed to check the bottle before it was dispensed to the plaintiff. The recommended daily dosage for Talwin 2 mg. The recommended dosage for Tenex is 1 mg daily. One of the listed side effects includes shortness of breath. Allegedly, the plaintiff ingested eight Tenex tablets over the next four days and began experiencing dizziness, vertigo, shortness of breath and fatigue. The average half-life of Tenex is 17 days. However, the plaintiff's health deteriorated for several additional months. She was eventually diagnosed with a drug-induced asthma condition and chronic fatigue syndrome. The plaintiff alleged malpractice against the pharmacist on duty and the pharmacy. Part of the evidence uncovered the fact that the pharmacist-defendant had previously been convicted for violation of the Georgia Controlled Substances Act and suffered temporary license suspension by the Board of Pharmacy. Accordingly, the plaintiff added a count of negligent hiring and retention against the corporate defendant. The plaintiff produced evidence she paid medical expenses of approximately $14,000 and lost $90,000 in wage earnings. The case settled for $850,000.

Conclusion
Each of these cases provides insight into the nature of cases brought against pharmacies and pharmacists and settlement or verdict amounts that are not readily available elsewhere. Hopefully this kind of information will become widely available through online resources. Meanwhile, use the internet resources available; creative searches could lead to valuable information.

 

 

REFERENCES

1. http://www.malpracticeweb.com/kmart_va.htm.

2. Van Hhattem v. Kmart corp., 308 Ill. App. 3d 121; 719 N.E.2d 212; 1999 Ill. App. LEXIS 704; 241 Ill. Dec. 351, November 15, 1999.

3. http://www.injuryboard.com/causeHeadlineNewsArticle.cfm/hurl/varFrom=Leveltwocause/fstlc=3/seclc=70/Article=1396/.

 
Vol. No: 28:01 Posted: 1/15/03


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U.S. Pharmacist is a monthly journal dedicated to providing the nation's pharmacists with up-to-date, authoritative, peer-reviewed clinical articles relevant to contemporary pharmacy practice in a variety of settings, including community pharmacy, hospitals, managed care systems, ambulatory care clinics, home care organizations, long-term care facilities, industry and academia. The publication is also useful to pharmacy technicians, students, other health professionals and individuals interested in health management. Pharmacists licensed in the U.S. can earn Continuing Education credits through Postgraduate Healthcare Education, LLC, accredited by the Accreditation Council for Pharmacy Education (ACPE) as a provider of continuing pharmacy education.

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