Liability for Providing Medication for Someone Else with a Similar Name

ISSUE OF THE CASE

When a patient approaches the pharmacy counter to pick up a prepared prescription and receives a bag containing medication for another, is the pharmacy staff legally obligated to deliver the right medication to the right patient? If so, has that legal expectation been breached in this case?

FACTS OF THE CASE

A prescription for a prednisone product had been phoned in to the local operation of a national pharmacy chain by the prescriber, and it was prepared to be picked up by the patient. The patient’s name was Walker F. When he approached the counter, the technician at the register knew him and went to retrieve the bag containing his medication. Unfortunately, the bag she retrieved and gave to him was for William F, a customer with the same last name as Walker’s. The bag contained ramipril to treat hypertension, not the prednisone that Walker should have received.

The operational policy of the pharmacy chain at the time was that the technician completing the transaction at the register was to request 2 forms of identifying information (ie, name and address). The technician testified during a deposition that she knew Walker F, a regular patient, by sight. She could not recall the specifics of the transaction in question.

The patient took a dose of the erroneous medication on the day he picked up the prescription, as well as the next day. He also took his regular antihypertensive medication, unaware that he was taking duplicative therapy. On the second day, his blood pressure was too low for his scheduled dialysis treatment. Later that day, he was taken to the emergency department (ED) of a local hospital. He underwent some imaging and returned home. The next day he was taken to the ED by ambulance and underwent emergency surgery. He survived the surgery for a bowel problem, but died 2 weeks later, having never left the hospital.

His surviving spouse filed a lawsuit against the pharmacy chain, presenting 4 issues: (1) the relevant legal standard of due care in such a situation, (2) whether that standard had been breached, (3) direct causation between the breach and the damages, and (4) the amount of legally recognized damages in such a situation. The matter was filed in a federal district court because the pharmacy chain headquarters is in a different state.

One portion of the case came before the judge prior to having a full trial. The plaintiff/spouse made a motion for summary judgment: that is, a decision in her favor by the judge without the matter having to go to a jury, on the first 2 issues, the standard of care, and whether it had been breached.

THE COURT’S RULING

The federal judge ruled that the plaintiff/ spouse had indeed established the standard of due care applicable to ensure that the correct medication was provided to the right patient and that that legal duty had been breached in this situation.

THE COURT’S REASONING

Approval of a motion for summary judgment is appropriate if the moving party can establish that there is no genuine dispute of any fact, material to whether the other party breached the applicable standard of care. That decision is to be reserved for the jury if reasonable minds could disagree about whether the applicable standard of care had been breached.

In this proceeding, the plaintiff/spouse presented deposition testimony from an experienced pharmacist serving in the role of an expert witness. He testified that in his professional opinion, a pharmacy, “through its employees, is required by the standard of care to verify that the correct medication is given to a patient.” The defendant pharmacy chain presented “no sworn testimony or argument ‘as to how a pharmacy could give a patient the wrong medication without breaching its duty.’” Hence, there was no rebuttal to the testimony of the pharmacist-expert.

The court noted that, even if there had been no expert testimony on that point, the same conclusion could have been reached: “The alleged negligence may lie within a jury’s common knowledge and experience, such that expert testimony is not even necessary.” It pointed to an earlier case in which it was concluded that “expert testimony was unnecessary because a jury could understand without the aid of such testimony, that dispensing wrong medication is a breach of a pharmacist’s standard of care.”

Emphasizing that the pharmacy chain had “presented no conflicting testimony, expert opinion, or factual information that might put the facts necessary to establish a standard of care in material dispute,” the court concluded “a pharmacy must somehow verify it delivers the right medication to the right patient, and can use unique identifying information to do so.” The plaintiff had met the burden of establishing a standard of care for pharmacists in such situations, along with breach of that standard here. The remaining issues to be addressed in further proceedings were direct causation and amount of damages.

Dr. Fink 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, Lexington.