Potential Legal Issues Surrounding an Impaired Pharmacist

Pharmacy Times, Volume 0,0

It was a horrendous discovery. Her 80-plus-year-oldmother had not answered the telephone all morning, soshe went to check on the woman. She walked in on ascene the image of which would be burned into her memoryfor the rest of her life. She found her mother lying onthe 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 whatmight have happened. She saw no sign of foul play—noforced entry into the house and no wounds on the body. Asshe searched for causes, she saw her mother's prescriptioncontainers on the counter in the bathroom.

The mother did not consume much medication for herage, but she had been taking an antidepressant for years. Shegot good results from it and took it faithfully because she hadencountered no objectionable side effects. She had noted,however, that the appearance of the tablets in the latest containerwas different. She knew that there had been a dosageadjustment recently, which might explain the differingappearance, but these tablets looked completely different.

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

As part of the pretrial discovery activities through whichthe attorneys flesh out their case, it was uncovered that thepharmacist on duty when the prescription was dispensedwas impaired by substance abuse. This revelation did notcome 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 representingthe injured woman doggedly pursued it to a successfulout-of-court settlement of substantial size. The defendantshad a good incentive to settle the case—the plaintiffhad graphic photos of the frail elderly woman's blood spatteredin the bedroom and bathroom that would have addedseveral zeros to a jury award if the case had gone that far.

This synopsis of an actual case from a midwestern stateillustrates one potential legal entanglement that can ariserelated to the activities of an impaired pharmacist who hasnot had intervention and treatment. A malpractice claim isjust one possibility. Other possibilities include potentialentanglements with licensure and regulatory agencies, civilliability concerns for the employer, potential ramificationsfor professional liability insurance coverage, and even thepotential for criminal liability. Finally, legal issues exist relatedto one's rights under the US Constitution, as well as issuesrelated to the law governing employment relationships.

Administrative Sanctions

The sanction most often of greatest concern to pharmacistsis an action by the board of pharmacy that mightimpact licensure status—either a suspension for a period oftime or a permanent revocation. A pharmacist who isimpaired may represent a danger to public health, and thelicensing agency would be highly justified in acting in sucha case, given sufficient proof of danger to patients.

One alternative to license suspension or revocation is theadministrative 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 alsorandom generation of urine samples to be tested for theabsence of abused substances, in order to monitor compliancewith the order.

A further issue to be considered is that some pharmacyboard license renewal application forms ask whether thelicensee has had action taken by another board in a separatestate where licensed. In such a case, something similar to anagreed order should be disclosed and reported. Misrepresentationwhen renewing a license is a serious offense and is nottaken lightly by boards of pharmacy.

Civil Liability

The introductory discussion of the case in the midwesternstate focused on the civil liability of the pharmacist. Whatabout the liability of the employer? The employer often representsa "deeper pocket" to be targeted by the plaintiff'sattorney. An applicable legal theory known as respondeatsuperior, meaning "let the master answer for the negligenceof the servant [employee]," imposes vicarious liability on theemployer.

What if the coworkers of the impaired pharmacist hadnoticed erratic or highly unusual behavior, as in the caseabove? What if the supervisor had been aware of the pharmacist'schange in reliability and had noted it during performanceevaluations? Both situations could put the onuson the employer to investigate and take remedial action.

Criminal Liability

Could even the extreme of criminal liability exist in sucha case? Pharmacists may recall the instance a number ofyears ago when a pharmacist in Ohio was charged with negligentmanslaughter by a local district attorney for selectinga generic version of a brand name medication that, in theview of the prosecutor, caused or hastened the death of apatient. Although finally cleared, the pharmacist was caughtup in the web of the criminal justice system for some time.

Constitutional Rights

A variety of other legal issues may surface surrounding animpaired pharmacist, some of which may not initially beobvious. For example, does the protection against unreasonablesearches and seizures contained in the Fourth Amendmentto the US Constitution apply when asking an employeeto generate a urine sample for testing? Might the samelegal protections apply to employer-sanctioned searches ofan employee's locker or other employer-provided areaswhere employees leave their personal items while working?The answer to those questions may depend on whether theemployer is a government entity to which such proscriptionsare applicable.

Employment Law

Finally, legal issues may arise related to another dimensionof the employer-employee relationship: the job applicationand interview process. Astute employers are includingquestions about the use of illicit substances onemployment applications. Furthermore, they are requiringpreemployment screening for substance abuse, and they areasking questions during the job interview related to thatissue when appropriate. This questioning is all legally permissible.Falsification of information on an employmentapplication and misrepresentations during a job interviewcan be a basis for dismissal of an employee after hiring whenthe transgressions come to light.

Conclusion

Many states have created Impaired Pharmacist Committeesor initiatives with like designations to work with pharmacistswho have a problem in this area, to help them overcomeit and get back on track. Most of this work has beendone during the past 20 years, and refined systems are nowin place. Pharmacists struggling with such challenges neednot face them alone. Addressing these issues in a timelyfashion can help head off numerous problematic legalentanglements that can further complicate the life of animpaired pharmacist.

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