The High Cost of an Unmade Phone Call

In March of 2016, New York became the second state (following Minnesota) to require electronic prescribing. The goal of the New York regulations is to reduce overprescribing of opioids and prevent paper prescription fraud, but there is another reason why the e-prescribing rules have been looked upon favorably: It is expected that the shift to electronic prescribing will cut down on errors due to illegible handwriting.

Illegible handwriting by prescribers has been a long-time issue for pharmacists, with pharmacy trade publications even devoting pages to “Can You Read This Prescription” quizzes. And while the punchline of a doctor with terrible handwriting is a common joke, the ramifications can be far reaching as we see from this case.

The Facts
The patient, a female in her fifties, was undergoing treatment for stage IV lung cancer. Her physician ordered Tarceva (erlotinib) as an adjunct to the chemotherapy protocol that the patient was currently undergoing.

When the pharmacist received the prescription, he sighed disgustedly and quietly wondered to himself why handwriting wasn’t a mandatory class in medical school. But his workload was backing up, his manager was eyeing him critically, and he had a quota of prescriptions to fill, so he squinted at it a few times and decided that it read Tambocor (flecainide acetate - a drug used in the treatment of cardiac arrhythmia, not cancer.) The pharmacist then filled the prescription for wrong medication and dispensed it to the patient.

The patient took the wrong medication for approximately a month before the error was discovered when she visited her physician’s office to obtain a refill prescription and complained to her physician about multiple falls, dizziness, and shortness of breath. Her physician diagnosed drug toxicity from the Tambocor, and the patient had to be hospitalized for several weeks to get inpatient care.

The patient alleged that toxicity from the improperly dispensed medication resulted in an unnecessary progression of her cancer because the Tarceva that had originally been ordered could not be initiated for another month due to complications from the dispensing error. The patient decided to sue the pharmacist.

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The Parties Go to Arbitration
The patient and pharmacist agreed to arbitration to settle the matter. Arbitration is a less expensive, less stressful, and less time-consuming alternative to a typical legal case which goes to trial. Like trials, however, arbitrations usually involve opening statements by both sides, the presentation of witnesses (including experts) and closing arguments. Unlike a trial, there is no judge or jury, instead arbitrators (usually between one and three) act as both judge and jury. Arbitration is less formal than a trial, and requires much less (costly) preparation by the parties and their lawyers.

At arbitration, the patient argued that the dispensing error delayed her getting the drug she actually needed, which allowed her cancer to advance more quickly. The defense argued that the error did not cause the advancement of the patient’s lung cancer, which already was in final stages. This lack of causation argument was successful, and the plaintiff lowered her money demand from a very high number to a low six-figure number. The case then settled.

The Takeaway
While the pharmacist’s dispensing error was not found to be the cause of hastening the patient’s death, it still was a significant and preventable error. The pharmacist had no adequate explanation for not calling the physician for clarification – making it the most expensive phone call ever NOT made.

The pharmacist in this case could have protected himself by calling the prescriber for clarification and by withholding the medication until he had verified that it was correct. Also, providing patients with educational material can help ensure patient awareness of what medication they should be taking. Always counsel patients to contact their physician or go to the emergency department in the event of adverse or unexpected reactions when starting treatment with a new medication.

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly Director of Periodicals at the American Pharmacists Association.