Pharmacy Times

Pharmacy Law: Punitive Damages Possible in Malpractice Case?

Author: Joseph L. Fink III, BSPharm, JD

When a pharmacist overrides a computer-generated warning when dispensing a prescription that results in patient harm, may the patient sue the pharmacist and/or pharmacy for punitive damages?

ISSUE OF THE CASE
When a pharmacist ignores a computer- generated alert to check the dosage of a medication, resulting in a double-check not being done that injures a patient, may the patient include in the resultant lawsuit a claim for punitive damages to be assessed as punishment for the errant pharmacist and pharmacy?

FACTS OF THE CASE
A patient in an eastern state received a recommendation from his cardiologist that he use warfarin (Coumadin). The prescription was phoned in to the prescription department of a chain pharmacy, with a one-time starting dose of 10 mg and a maintenance dose of 5 mg. The pharmacist dispensed the correct medication, but the dosage instructions provided on the container were incorrect. This resulted in the patient taking 3 times the amount of medication intended. Consuming the medication in accordance with labeled directions, the patient suffered a stroke that caused permanent injuries.

The computer system records of the chain pharmacy verified that the pharmacist on duty had received an alert or warning message on the screen at the time of dispensing indicating that the dosage should be verified because it exceeded the recommended daily dosage for the medication. The pharmacist did not contact the prescriber and proceeded with dispensing the medication with the erroneous dosage directions on the label.

The lawsuit had the pharmacy as the primary target, and allegations in the legal filing included common law negligence, carelessness, gross negligence, and recklessness. Failure to counsel in accordance with the mandates of the state’s Omnibus Budget Reconciliation Act of 1990 regulations was also alleged.

The lawsuit sought compensatory damages in the amount of $150,000 plus interest, an allocation to cover the cost of bringing the claim to court, as well as punitive damages. This addition of the claim for punitive damages is very significant and rarely encountered in a lawsuit for negligence. This seeks an assessment of a payment as punishment of the defendant, not with the primary goal of compensating the plaintiff, as is usually the case.

A significant consideration for the defendant is that an amount assessed as punitive damages may not be covered or reimbursed by one’s professional liability insurance policy, as would be the case with compensatory damages. The rationale for this is that wrongdoers should not be permitted to raise their insurance policies as a shield to protect them from the consequences of what the jury deemed an act deserving of punishment.

The defendants made a motion to the trial court judge for partial summary judgment, arguing that the law did not support or entitle the plaintiff to recover punitive damages. Such a motion isolated the issue for the judge to rule on it separately from the other issues related to the case.

THE COURT'S RULING
The motion to delete the punitive damages portion of the lawsuit was denied. That portion of the lawsuit was permitted to remain and go forward.

THE COURT'S REASONING
The law of the state where this case arose provides that punitive damages are available to plaintiffs in 2 situations: (1) where the plaintiff can prove that the harm suffered was the result of “actual malice”; or (2) where it can be established that there was “wanton and willful disregard” on the part of the defendant. The plaintiffs pointed to the pharmacist’s apparently cavalier override of the alert or warning as the basis for punitive damages. The defendants argued that “there were no facts to establish that the pharmacist committed a deliberate act with knowledge that the act carried a high probability of harm toward the plaintiff.” Legal research submitted by the defendants indicated that there had never been a case in that jurisdiction in either state or federal court supporting recovery of punitive damages in a pharmacy malpractice case.

Nonetheless, the trial court judge ruled that this was a question for the jurors to answer, not him. He concluded that “a reasonable juror could find that the defendant acted with willful and wanton disregard for the safety of the plaintiff.” He pointed out that this state had no blanket prohibition against award of punitive damages in a professional malpractice case. Furthermore, he emphasized that the pharmacist on duty that day had admitted under oath during a deposition that he overrode the warning appearing on the computer screen. The judge concluded that he could not, “as a matter of law, state that these actions do not rise to the level of ‘willful and wanton conduct’ as defined in the punitive damages statute” of the state.



Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.