An Error at the Drive-Through Window: Is It Malpractice?

Pharmacy TimesMarch 2019 Respiratory
Volume 85
Issue 3

At issue in a lawsuit after a patient’s spouse took home and administered another person’s medications is whether there is a basis for punitive damages.


When the spouse of a patient dropped off 2 prescriptions for dispensing at the drive-through window of a community pharmacy and was told that 2 others were ready to be picked up, she took those home and administered the medications to her husband, causing problems because those were not for him.

If a lawsuit is filed, would this be a claim for professional malpractice or negligence? And would this claim be the basis for an award of punitive damages?


The clerk handling the transaction at a drive-through window of a community pharmacy in a Southern state erroneously gave 2 prescriptions for a patient with the same last name to the spouse of a patient. The patient suffered from Alzheimer disease, diabetes, and high blood pressure. The medications dispensed in error were alprazolam and sertraline. Those were administered to the patient by his wife at about 11 pm, and at 4 am, she heard him calling her name. She found him on the floor near the front door with nothing around that constituted a tripping hazard. Nothing in the area accounted for his fall.

He could not get up. An ambulance was called, and it was discovered at the emergency department that he had a broken hip, requiring emergency surgery.

The couple filed a lawsuit against the pharmacy that included several claims: professional negligence, simple negligence, loss of consortium, and punitive damages. The attorney representing the pharmacy made a motion with the state trial court seeking summary judgment on all the claims. Such a motion seeks to have the judge expeditiously handle the case by ruling that no genuine dispute exists with regard to the relevant or material facts of the claim, and as a result, no trial on that issue is required.

The judge granted the motions made by the defendant pharmacy regarding the claim of professional negligence and the claim seeking the award of punitive damages. Punitive damages are over and above the more commonly encountered compensatory damages designed to compensate the injured party for the loss suffered. Punitive damages are assessed as pure and simple punishment for the wrongful act. They are usually assigned because of outrageous conduct, with the goal of deterring the defendant or others from doing the same thing.

The plaintiffs did not agree with that action by the judge and appealed to the state court of appeals.


The appellate court ruled that there was only simple negligence and that the facts did not support the recovery of punitive damages.


Turning first to the issue of whether the error that occurred should be viewed as professional negligence or ordinary negligence, the court emphasized that if it were the former, the case would require the testimony of 1 or more expert witnesses to establish appropriate professional standards applicable to the situation. That is required because professional activities and decision making are beyond the familiarity of most nonprofessionals serving on the jury.

However, the court looked to a prior decision of the state’s supreme court wherein that adjudicatory body had decided that “there are instances in which actions performed by or under the supervision of a professional are nevertheless not professional acts constituting professional negligence but, rather, are acts of simple negligence which would not require proof by expert evidence.” The same court had decided in a different case involving a medical professional rather than a pharmacy professional that “the rule is that administrative, clerical, or routine acts demanding no special expertise fall in the realm of simple negligence rather than medical malpractice.”

Applying the precedent of those 2 prior rulings by the state’s highest court, the court of appeals in this case ruled that “the cashier’s act of handing [the spouse] the wrong medicine, whether or not she took any steps to confirm [the patient’s] identity as the proper recipient, raises an issue of simple negligence and not professional malpractice.”

Thus, the appellate court confirmed the decision of the trial court judge on that issue.

Turning to the issue of whether punitive damages should be considered in this case, the court reviewed the wording of the relevant state statute: “Punitive damages may be recovered where a plaintiff establishes by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”

In sum, the state court of appeals agreed with the rulings of the trial court, and it affirmed the judgments of the lower court.

Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.

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