Lawsuit Seeks Punitive Damages for Dispensing Error

Pharmacy Times, May 2022, Volume 88, Issue 5

Does sufficient evidence exist to support an award against pharmacists’ employer, a national pharmacy chain?

Issue of the Case

A pharmacist erred in recording medication use instructions on the label of a dispensed prescription and the error was not spotted by 2 other pharmacists issuing refills. Is there sufficient evidence to support the awarding of punitive damages against their employer, a national pharmacy chain?

Facts of the Case

A cardiologist in a Midwest state issued a prescription requesting dispensing of amiodarone for a male patient who had chronic ischemic heart disease and atrial fibrillation. The pharmacist initially dispensing the medication made an incomplete recording of the medication use directions on the container label. The instructions that the cardiologist gave to the pharmacist for reproduction on the label were: two 200-mg tablets twice a day for 1 week, then one 200-mg tablet 3 times a day for 2 weeks, then one 200-mg tablet twice per day for 2 weeks and then one 200-mg tablet daily.

However, when preparing the label for the container, the pharmacist omitted the last portion. The quantity prescribed was 200 tablets, which would be sufficient for the 5 initial weeks (98 tablets) and then an additional 102 days at 1 tablet per day. This amount would cover approximately 19.5 weeks. The net result of the error was that the patient was using a higher daily dosage than the cardiologist intended, double in fact, for a protracted period.

Magnifying the impact of the labeling error was that the pharmacy had on hand an insufficient quantity of tablets when the prescription was initially presented. The initial dispensing was 60 tablets, rather than the 200 requested. Upon using up the initial supply, the patient returned and was given 454 tablets. The record created by the initial dispensing pharmacist indicated that 514 units were initially prescribed, and he had provided 60. The second dispensing pharmacist did not catch the error in the instructions on the label that had led to the patient using 2 tablets per day rather than 1.

At a third dispensing by yet another pharmacist, the pharmacy had just 10 tablets in inventory, so that was followed by an additional 504 tablets several weeks later. The third pharmacist also did not detect the labeling error and attached the erroneous instructions to the container.

The patient’s health deteriorated during the remainder of that year and he “suffered mightily in the weeks before his death,” according to a lawsuit filed by his family against the national pharmacy chain based on their expert consultants’ views that his suffering and demise were due to amiodarone-induced hepatotoxicity. The lawsuit sought both compensatory damages, designed to compensate them for their expenses and the loss suffered, and punitive damages, requesting that the jury award an amount as punishment for the chain’s pharmacists’ failure to act to head off this terrible outcome. The attorneys representing the pharmacy chain filed a motion with the federal district court where the matter was pending, seeking to have the judge grant a partial summary judgment on whether the applicable law allowed for awarding of punitive damages under these circumstances.

Note that the distinction between compensatory and punitive damages is important in a negligence case. The amount awarded as compensatory damages can be covered by a liability insurance policy, which the national pharmacy chain certainly had. On the other hand, an award of punitive damages, being designed to punish the defendant for wrongdoing that led to the damages, cannot be covered by the insurance policy. With punitive damages designed to meet the jury’s assessed need for punishment, there would be no punishment if that awarded amount were to be covered by the defendant’s indemnity insurance policy.

The Ruling

The trial court judge ruled that there was insufficient basis presented by the family to support a claim for punitive damages. The partial summary judgment on that portion of the lawsuit was granted.

The Court's Reasoning

Pointing to the law of the state where the case arose, the judge emphasized that “malice is an essential element of a claim for punitive damages.”

Further, a state supreme court opinion specified that actual malice is a “positive state of mind, evidenced by the positive desire and intention to injure another, actuated by hatred or ill will toward that person.”

The plaintiffs had not alleged that the pharmacy chain or the pharmacists had any such malice.

Alternatively, presumed malice “does not require that the individual act out of hatred or ill will but requires that an individual acts ‘willfully or wantonly to the injury of another,’” according to the state supreme court’s opinion.

Malice is not presumed from “simply the doing of an unlawful or injurious act,” according to the state supreme court’s opinion.

Rather, malice is presumed from acts that are “conceived in the spirit of mischief or of criminal indifference to civil obligations,” according to the state supreme court’s opinion.

The plaintiffs had argued that the gross negligence of the chain’s pharmacists was the equivalent of wanton or willful misconduct. The court did not agree, so the absence of malice led to the court affirming the trial court’s dismissal of the punitive-damages portion of the case, according to the state supreme court.

About The Author

Joseph L. Fink III, JD, DSC (HON), BSPHARM, FAPHA, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.