Pharmacy Law: Liability of a Nursing Home Pharmacist Not Told of Drug Change

Joseph L. Fink III, BSPharm, JD
Published Online: Thursday, January 16, 2014
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A case involving a modified medication schedule and a transcription error that may have contributed to a patient's demise.
Issue of the Case

When a patient in a long-term care facility is started on one regimen of a medication for seizures and agitation and that schedule is later modified by the prescriber, resulting in a transcription error by the nurse, will the pharmacist and pharmacy be held liable when the patient suffers a seizure that later leads to her demise?

Facts of the Case

A female patient was admitted to a long-term care facility in a southwestern state with a diagnosis of early dementia. When she was admitted, her physician wrote an order for lorazepam with the dual goal of controlling her agitation as well as limiting some seizure activity associated with the dementia. The directions for using the medication indicated that it was to be used both 3 times a day and “as necessary” (PRN).

Those dosing directions were changed 11 months later when the prescriber called the facility to speak with a nurse, telling her to continue the 3-times-a-day dosage but to discontinue the other part of the order, the authorization to use that medication PRN. Unfortunately, the nurse who took the call reversed the order of things when transcribing the information, canceling the 3-times-a-day permission and continuing the PRN authorization. After missing 21 dosage administrations over the next week, the patient experienced a seizure while in the bathroom, falling and fracturing her hip. That incident later led to her death.

The patient’s surviving spouse filed a lawsuit alleging breach of contract, negligence, and negligence per se. Of major interest, however, is the fact that he did not sue the nurse who made the transcription error, he did not sue the prescriber, nor did he sue the operator of the nursing home that was the employer of the nurse. Rather, his lawsuit had 2 other defendants as targets: the firm that provided long-term care pharmacy services under contract with the nursing home and the pharmacist who provided consultant pharmacy services there.

The defendants, both the firm and the pharmacist, moved that the trial court grant summary judgment before the trial began, arguing that there was no genuine issue of material fact and a decision can be made by the judge without a jury based solely on the applicable law. The judge initially denied that motion but subsequently granted it, thereby terminating the case at the trial court level. The plaintiff/surviving spouse filed an appeal to the state court of appeals, arguing that the trial court judge had erred in terminating the suit in that fashion.

The Court's Ruling

The appellate court ruled that the decision by the trial court judge, granting the motion for summary judgment, was indeed correct. Granting a motion for summary judgment was appropriate in this instance because both the appellate court and trial court concluded that there was no genuine issue of material fact. It was appropriate for the decision to be made solely based on the applicable law.

The Court's Reasoning

The first argument presented on appeal to be addressed by the court was that the trial court judge had erred when he reconsidered the defendants’ motion for summary judgment that he had originally denied. The appellate court pointed out that such an order was indeed subject to reconsideration by the trial court judge because his initial ruling was interlocutory, meaning temporary or provisional.

Next, the appellate court looked at whether the plaintiff could base a claim on breach of the contract between the nursing home and the pharmacy services provider. The general rule is that “one who is not a party to a contract cannot sue to enforce it.” Additionally, the contract between the 2 entities bore a very clear provision specifying that nothing in the contract was intended to confer any benefits on any third party. Accordingly, the appellate court ruled that the breach of contract claim was baseless.

The major point to be determined for decision in the case was whether the firm or the pharmacist owed a legal duty to the patient. The court correctly emphasized that no one from the nursing home provided notification of the changes phoned in by the prescriber. That was in direct contravention of the pharmacy services contract that required the facility’s staff to notify them “daily of any changes in resident medication upon receipt of physician orders.”

That contract also mandated monthly chart reviews of medication orders for all patients, as did state regulations. The pharmacist did that on December 14, leaving a chart note for the physician inquiring about deleting the PRN order. The dosage change was phoned in on January 10, the patient had the seizure on January 17, and the pharmacist returned for his monthly visit on January 18. The defendants had not received any communication about the patient’s medication regimen from the nursing home from December 14 to January 18.

The court concluded by pointing out that the plaintiff had presented no evidence that the defendants had a duty or ability to control the nurse who made the error or had a duty to detect the transcription error she had made. The claim had been properly dismissed by the trial court judge.


Dr. Fink is professor of pharmacy law and policy and Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.


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