Potential Legal Issues Surrounding an Impaired Pharmacist

Joseph L. Fink III, BSPharm, JD
Published Online: Sunday, May 1, 2005

It was a horrendous discovery. Her 80-plus-year-old mother had not answered the telephone all morning, so she went to check on the woman. She walked in on a scene the image of which would be burned into her memory for the rest of her life. She found her mother lying on the bathroom floor with blood streaming from every orifice. Bedclothes and sleeping attire were soaked with blood.

After getting her mother to the hospital and stabilized, the daughter returned to the house to begin to sort out what might have happened. She saw no sign of foul play—no forced entry into the house and no wounds on the body. As she searched for causes, she saw her mother's prescription containers on the counter in the bathroom.

The mother did not consume much medication for her age, but she had been taking an antidepressant for years. She got good results from it and took it faithfully because she had encountered no objectionable side effects. She had noted, however, that the appearance of the tablets in the latest container was different. She knew that there had been a dosage adjustment recently, which might explain the differing appearance, but these tablets looked completely different.

The daughter discovered the problem—a dispensing error. Instead of the prescribed antidepressant, her mother had received an anticoagulant and had consumed a dosage that led to the bleeding episode. Someone suggested that she consult an attorney about her mother's legal options for this extremely traumatic episode. A lawsuit was filed.

As part of the pretrial discovery activities through which the attorneys flesh out their case, it was uncovered that the pharmacist on duty when the prescription was dispensed was impaired by substance abuse. This revelation did not come easily. The technicians with whom he worked, however, had voiced some suspicions about his erratic behavior. The trail was rough at first, but the diligent attorneys representing the injured woman doggedly pursued it to a successful out-of-court settlement of substantial size. The defendants had a good incentive to settle the case—the plaintiff had graphic photos of the frail elderly woman's blood spattered in the bedroom and bathroom that would have added several zeros to a jury award if the case had gone that far.

This synopsis of an actual case from a midwestern state illustrates one potential legal entanglement that can arise related to the activities of an impaired pharmacist who has not had intervention and treatment. A malpractice claim is just one possibility. Other possibilities include potential entanglements with licensure and regulatory agencies, civil liability concerns for the employer, potential ramifications for professional liability insurance coverage, and even the potential for criminal liability. Finally, legal issues exist related to one's rights under the US Constitution, as well as issues related to the law governing employment relationships.

Administrative Sanctions

The sanction most often of greatest concern to pharmacists is an action by the board of pharmacy that might impact licensure status—either a suspension for a period of time or a permanent revocation. A pharmacist who is impaired may represent a danger to public health, and the licensing agency would be highly justified in acting in such a case, given sufficient proof of danger to patients.

One alternative to license suspension or revocation is the administrative equivalent of an "out-of-court settlement," sometimes known as an "agreed order." In such a situation, the pharmacist would agree to undergo treatment and also random generation of urine samples to be tested for the absence of abused substances, in order to monitor compliance with the order.

A further issue to be considered is that some pharmacy board license renewal application forms ask whether the licensee has had action taken by another board in a separate state where licensed. In such a case, something similar to an agreed order should be disclosed and reported. Misrepresentation when renewing a license is a serious offense and is not taken lightly by boards of pharmacy.

Civil Liability

The introductory discussion of the case in the midwestern state focused on the civil liability of the pharmacist. What about the liability of the employer? The employer often represents a "deeper pocket" to be targeted by the plaintiff's attorney. An applicable legal theory known as respondeat superior, meaning "let the master answer for the negligence of the servant [employee]," imposes vicarious liability on the employer.

What if the coworkers of the impaired pharmacist had noticed erratic or highly unusual behavior, as in the case above? What if the supervisor had been aware of the pharmacist's change in reliability and had noted it during performance evaluations? Both situations could put the onus on the employer to investigate and take remedial action.

Criminal Liability

Could even the extreme of criminal liability exist in such a case? Pharmacists may recall the instance a number of years ago when a pharmacist in Ohio was charged with negligent manslaughter by a local district attorney for selecting a generic version of a brand name medication that, in the view of the prosecutor, caused or hastened the death of a patient. Although finally cleared, the pharmacist was caught up in the web of the criminal justice system for some time.

Constitutional Rights

A variety of other legal issues may surface surrounding an impaired pharmacist, some of which may not initially be obvious. For example, does the protection against unreasonable searches and seizures contained in the Fourth Amendment to the US Constitution apply when asking an employee to generate a urine sample for testing? Might the same legal protections apply to employer-sanctioned searches of an employee's locker or other employer-provided areas where employees leave their personal items while working? The answer to those questions may depend on whether the employer is a government entity to which such proscriptions are applicable.

Employment Law

Finally, legal issues may arise related to another dimension of the employer-employee relationship: the job application and interview process. Astute employers are including questions about the use of illicit substances on employment applications. Furthermore, they are requiring preemployment screening for substance abuse, and they are asking questions during the job interview related to that issue when appropriate. This questioning is all legally permissible. Falsification of information on an employment application and misrepresentations during a job interview can be a basis for dismissal of an employee after hiring when the transgressions come to light.

Conclusion

Many states have created Impaired Pharmacist Committees or initiatives with like designations to work with pharmacists who have a problem in this area, to help them overcome it and get back on track. Most of this work has been done during the past 20 years, and refined systems are now in place. Pharmacists struggling with such challenges need not face them alone. Addressing these issues in a timely fashion can help head off numerous problematic legal entanglements that can further complicate the life of an impaired pharmacist.

Dr. Fink is professor of pharmaceutical policy and pharmacy law at the University of Kentucky (UK) as well as professor of public health. He is a faculty associate with the Multidisciplinary Research Center on Drug and Alcohol Research at UK.



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