PHARMACY AND THE LAW
The High Cost of an Unmade Phone Call: Page 2 of 2
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.
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.