Medication Preparation Error Causes Major Ill Effects for Child

Pharmacy TimesMay 2024
Volume 90
Issue 5

The incident highlights the benefits of out-of-court settlements in civil cases

A mother took a prescription for her child requesting an amoxicillin and ibuprofen preparation to a nearby pharmacy, which was part of CVS. An error was made when compounding the combination, resulting in it being too concentrated. The preparation was administered to the minor and he quickly “began to vomit, had a fever, his eyes rolled to the back of his head, and his entire body shook for about 1 minute,” according to legal filings. He was taken by ambulance to the emergency department.

After the child had already ingested the wrongly prepared combination, a staff member from the pharmacy allegedly called the mother to inform her of the mistake. The following day, the mother went to the pharmacy, taking the prescription containers with her. She spoke with an employee at the pharmacy who allegedly apologized for the mistake and expressed her guilt. The medication bottles were given to the store employee.

About the Author

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

Later that day, a different employee at the pharmacy called to provide an update regarding the incident, but details of that conversation were unavailable. At the time the lawsuit was filed it was alleged that the pharmacy chain had opened a file regarding the incident, but no further information had been given to the plaintiff.

The lawsuit was originally filed in state court but was moved to federal court due to diversity of citizenship among the parties. Attorneys for the defendant (the pharmacy chain) made a motion to dismiss the lawsuit. However, the judge allowed the matter to continue with some refinements in arguments to be made by the parties.

The Court’s Reasoning

The judge presented the standard to be used when deciding whether a lawsuit should proceed. The focus is to be on the plausibility of the plaintiff ’s claim and reasonable inference that the defendant is liable for the alleged misconduct.

The judge also reviewed an argument made by the pharmacy chain’s attorneys that this was not a traditional negligence claim but a professional negligence claim, invoking a different provision within the law of the state. They argued that this error should be basis for dismissal of the suit. But the judge disagreed, stating, “The court concludes that plaintiff ’s complaint gives defendant CVS fair notice of what the claim is and the grounds upon which it rests.” The judge allowed the plaintiff 21 days to amend the filings.

Three months later, both parties returned to court seeking to have the judge approve a settlement agreement that would be sealed. He denied that request, stating that “the mere fact that the production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.”

More than 1 year later, the parties were back in court to request that the judge approve a compromise out-of-court settlement. He approved a resolution of the matter that included a $5000 payment by the defendant. Of that total, $2337 went to pay the attorney representing the plaintiff. The plaintiff was to receive $2663. The judge approved the total amount as well as the division, bringing the matter to conclusion.

Out-of-court settlements occur extremely frequently with civil lawsuits such as this. It is estimated that in excess of 95% of civil matters conclude this way, with the parties agreeing on an amount to finalize the dispute.

There are a number of substantial arguments in favor of out-of-court settlements. They avoid a protracted controversy and public disclosure of perhaps highly confidential information. A negotiated settlement can be less expensive to pursue as well as less stressful. Finally, a negotiated out-of-court settlement gives both parties some degree of control over the outcome whereas there are absolutely no guarantees when dealing with a jury.

Ambriz v CVS Pharmacy, Inc, 1:19-cv-01391-NONE-SKO (ED CA Cir 2020).
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