Pharmacy Law: Is Technician Error Covered by a State's Medical Malpractice Law?

Pharmacy TimesFebruary 2015 Autoimmune Disorders
Volume 81
Issue 2

When a dispensing error occurs and the pharmacy technician was alleged to have participated in creation of the misadventure, do the procedural requirements specified in a state's statute covering medical malpractice claims apply?


When a dispensing error occurs and the pharmacy technician was alleged to have participated in creation of the misadventure, do the procedural requirements specified in a state’s statute covering medical malpractice claims apply?


A patient presented a prescription authorizing dispensing of a cardiac medication in a 250-mcg strength. However, due to an error in the dispensing process, the patient received capsules bearing twice that amount: 500 mcg. The medication error was discovered when she was hospitalized for an irregular heartbeat. A lawsuit based on the dispensing error was filed, arguing that the patient/plaintiff had suffered severe and disabling injuries, pain, and suffering, and had incurred medical expenses. The defendant named in the lawsuit was the pharmacy chain from which the medication had been dispensed.

Subsequent to the initial legal filing to launch the suit, the plaintiff sought to amend the legal complaint to add an allegation of negligence by the nonpharmacist technician on duty at the time. The motion to add the technician as an additional defendant framed an issue for the US District Court where the case was pending. Specifically, the issue presented to the court was whether a prefiling notice mandated by the state statute covering medical malpractice claims applied to a case such as this in which the defendant is a corporation rather than an individual health care practitioner. Further, did addition of the pharmacy technician as a named defendant activate the expectations of the state’s medical malpractice statute?

The corporate pharmacy chain filed a motion with the court to dismiss the claim, and the plaintiff filed a motion seeking the ability to amend its original filing. So the court was asked to rule on these dueling motions.


The court denied the motion of the defendant pharmacy chain and granted the motion of the patient/plaintiff to amend the complaint originally filed.


First, the court noted that although this matter was pending in federal court, due to the parties being from different states, it was the obligation of the federal court to apply the law of the southern state where the matter had arisen.

The court next looked at the state statutes governing medical malpractice claims, emphasizing that a number of specific notification requirements have been established by the governing law. The court noted that the state had defined “medical malpractice” in relevant part as “doing that which the reasonably prudent health care provider or health care institution would not do…” It also emphasized that the state had included “pharmacists” in the definition of “health care provider” under the statute.

The argument advanced by the defendant pharmacy chain was that even though no individual practitioner had been named in the complaint originally filed, the statutory requirements should apply because the allegations “unquestionably fall within the ambit of ‘medical malpractice’ as defined by state law.” And therefore, because the plaintiff had not complied with the statutory procedural mandates, the matter should be dismissed.

The plaintiff, on the other hand, argued that the suit had been deliberately filed against the corporation because it was not an example of a “health care institution” covered by the statutory prefiling mandates. The plaintiff also argued that the claim was for “ordinary negligence,” not medical malpractice, so the prefiling requirements were inapplicable. Additionally, because the plaintiff had not named a pharmacist as a defendant, the statutory expectations were not activated because no “health care provider” was being sued. The plaintiff was seeking the court’s permission to add a nonpharmacist technician to the suit based on 2 points: first, the technician was a non—health care provider, which was consistent with the plaintiff’s perceived need not to meet the prefiling requirements; and second, the technician had launched the misadventure by keying the wrong information into the computer or improperly retrieving the product from the shelf.

The court denied the motion of the pharmacy chain to dismiss the action because, in the court’s view, it was too early in the proceedings to answer the question of whether the pharmacy technician’s error led directly to the damages. However, the court denied the chain’s motion without prejudice, meaning that the chain still had the opportunity to raise the identical point later in the proceedings.

With regard to the motion by the plaintiff/patient to amend the original complaint to add the technician as a defendant, the court granted this motion because the pharmacy chain was unable to show that the requested changes to the filing were “clearly insufficient or frivolous on its face.”

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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