Consulting Pharmacist Owed No Duty of Care to Nursing Home Resident Injured Due to Nurse’s Transcription Error

Ativan05mg.jpgIn order to recover damages for injuries caused by a pharmacy error, a plaintiff must prove that the defendant breached a duty of care that it owed to the injured person. A state appellate court ruled that the husband of a nursing home patient who died due to a medication error could not recover damages from a third-party pharmacy services company or the consulting pharmacist. Thompson v. Potter, 268 P.3d 57 (N.M. App. 2011). The patient’s death, according to the plaintiff’s complaint, was caused by a nurse’s transcription error that resulted in an incorrect medication dose. The court held that the defendants had no authority or control over the nurse, and that they therefore did not breach a duty of care directly to the decedent. With no duty of care, they could not be held liable for negligence or malpractice.

The patient was admitted to a long-term nursing care facility in Alamogordo, New Mexico in February 2004. Her doctor diagnosed her with early dementia and prescribed Ativan, an anti-anxiety medication, to manage her agitation and prevent seizures associated with dementia. The doctor instructed the staff to administer Ativan three times a day and on an as-needed (“PRN”) basis. On January 10, 2005, the doctor told a nurse to discontinue the PRN dose. The nurse transcribed the doctor’s order incorrectly, resulting in written instructions to discontinue the three-times-a-day Ativan dose. The patient missed twenty-one regular doses, suffered a grand mal seizure and a fractured hip on January 17, and later died.

The patient’s husband sued the company contracted by the nursing home to provide pharmacy services and its registered pharmacist, asserting causes of action for breach of contract, negligence, and negligence per se. He did not sue the nursing home, the doctor who prescribed Ativan and changed the dose instructions, or the nurse who made the transcription error. The plaintiff alleged that the sudden withdrawal of Ativan caused his wife’s seizure, and that the injuries sustained due to the seizure caused her death. The defendants breached a duty of care in their capacity as providers of pharmacy services, the plaintiff claimed. The trial court granted the defendants’ motions for summary judgment on all of the plaintiff’s claims.

The appellate court affirmed the lower court’s order. It dismissed the negligence claims after examining whether or not the defendants owed a duty of care directly to patients of the nursing home. The nursing home was obligated under its contract with the defendant pharmacy company to notify it of any changes in patients’ medication orders, and state regulations required the defendant to review patients’ medication orders once a month. Id. at 64. The court found that the nursing home did not notify the defendant of the changes to the patient’s medication, and that all of the incidents leading to her death occurred between the defendant’s monthly visits to the facility. It therefore ruled that the defendants did not violate any duty of care to the patient.

The medication error attorneys at Lebowitz & Mzhen can assist people in Maryland who have been injured by drugs prescribed, dispensed, or administered incorrectly. Contact us today online or at (800) 654-1949 for a free and confidential consultation to discuss your case.

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Drug Shortages Impact Patient Care at Maryland Hospital, Pharmacy Error Injury Lawyer Blog, February 5, 2013
Photo credit: By Nsaum75 (Own work) [CC-BY-SA-3.0 or GFDL], via Wikimedia Commons.

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