Pharmacy Error Injury Lawyer Blog

Proposed Laws Increasing Ratio of Pharmacy Technicians to Pharmacists Could Adversely Impact Patient Safety

March 5, 2014 | Lebowitz & Mzhen

Pharmacies often rely on a team of medical professionals to meet the demands of customers. These teams consist of pharmacists, who must meet educational and licensing requirements in all U.S. states and the District of Columbia; and pharmacy technicians, who are not always subject to such strict credentialing requirements. Some states set a maximum ratio of pharmacists to pharmacy technicians, while others simply require that the pharmacist have adequate support from staff and technology to perform their professional duties. Pending legislation that would increase the number of technicians that can work under a pharmacist has raised concerns about patient safety.

To obtain a pharmacy license, an individual must obtain a degree from an accredited pharmacy school, pass several examinations, and maintain continuing education requirements. Many states do not require as many credentials to work as a pharmacy technician. Maryland requires a person to have a high school diploma or equivalent, complete a 160-hour training program or obtain certification from a national pharmacy organization, and complete annual continuing education. Supervision of pharmacy technicians by licensed pharmacists is critically important to patient safety.

According to a report by Tampa’s WFTS on pending legislation in Florida, errors occur in an estimated 0.09 percent of all prescriptions filled in the United States. While this seems like a small number, the Kaiser Family Foundation estimates, based on data from 2011, that doctors write more than 59 million prescriptions per year in Maryland alone. That means that more than 53,100 pharmacy errors may occur per year in this state. Most of these errors do not cause any harm, but injuries from pharmacy misfills can be severe.

Washington DC News Investigation Finds Multiple Medication Errors at National Pharmacy Chain

February 27, 2014 | Lebowitz & Mzhen

In a report on its investigation of the national pharmacy chain CVS/pharmacy, Washington DC’s NBC affiliate, News 4, claims to have found numerous alleged medication errors and other problems. Consumers reported receiving the wrong prescription and, in at least one case, meeting with indifference from employees. A former CVS pharmacist with more than thirty years at the company filed a whistleblower lawsuit last year, alleging in part that the company fired him in retaliation for reporting his concerns about an increasing rate of medication errors due to staff reductions. CVS has denied the allegations against it and publicly stated its commitment to protecting patients’ health and safety.

Washington’s News 4 reported a woman’s claim that CVS made a mistake when refilling her prescription for potassium citrate, which she took for her kidneys. She noticed that the pills did not look familiar, and saw that the pharmacy had given her a bottle of potassium chloride instead of citrate. The pills look similar and have similar names, but they have very different uses. Potassium chloride is used to treat hypokalemia, or low blood potassium, and can cause serious, even fatal, complications for some kidney patients. The woman claimed that when she notified the pharmacy manager of the mistake, he responded “Well, potassium is potassium.”
The report also looked at automatic refills, a service offered by CVS and other pharmacies. This allows the pharmacy to refill a prescription at regular intervals, so that the patient does not have to call and request a refill. Problems may occur, however, if the pharmacy refills prescriptions that the patient does not want or need. An elderly patient told the news team that he ended up with more Lidoderm patches, which contain an extremely strong painkiller, than he wanted, based on the auto refill system. This could lead to confusion for some patients, who might not realize that they are receiving medications they did not request.

Pharmacy Allegedly Dispenses Adult’s Prescription to Child with the Same Name, Resulting in Near-Fatal Drug Reaction

February 20, 2014 | Lebowitz & Mzhen

The family of a five-year old boy in the Chicago area is claiming that a case of mistaken identity resulted in the boy receiving the wrong medication and suffering a near-fatal reaction with possible long-term health effects. They have filed a negligence lawsuit in Cook County Circuit Court seeking $50,000 in damages. Pharmacies and the medical professionals they employ owe a duty of care to consumers to verify not only the type and dosage of medication dispensed, but also that the correct patient receives the correct medication.

The child reportedly had a routine checkup with a physician in January 2012. The doctor discussed allergy medication with the boy’s parents, but did not write a prescription at that time. A Walgreens pharmacy allegedly called the family two days later to tell them that their prescription was ready. Believing it to be the allergy medication they had discussed with the doctor, the boy’s mother picked the prescription up and began giving it to him according to the instructions on the bottle.

The lawsuit, filed in January 2014, states that the boy slept for almost two full days after taking the medication. When the child woke up, he exhibited unusual symptoms. His neck flared, leading his parents to call 9-1-1, but it soon subsided. The boy later fainted, so his parents took him to the doctor, who told them to go immediately to the hospital. The prescription that they thought was for allergies, they learned, was actually haloperidol, an antipsychotic medication intended for an adult with the same name as the child.

Hospital Uses “Storytelling” Approach to Prevent Medication Errors

February 13, 2014 | Lebowitz & Mzhen

A hospital in Houston, Texas has adopted a “narrative-based approach” of communicating the details of medication errors to hospital staff (login required). A medication safety consultant employed by the hospital found that the prior approach, which relied on unit managers to pass along information to their teams, was not leading to greater institutional knowledge about how to avoid medication errors. The new approach involves the production of short videos detailing the issues that led to a specific medication error. The success of the program is difficult to measure, as it is based solely on self-reporting by hospital leaders who seemed to perceive a substantial reduction in medication errors during the eight-month pilot program. The program bears some similarities to how many attorneys approach claims for pharmacy and medication errors, as a narrative story told to the judge and the jury.

MD Anderson Cancer Center ran a pilot program from October 2012 to June 2013. Every month, a team consisting of a nurse, a pharmacist, and a patient safety specialist would review recent medication errors to identify important concerns. They would decide on three events or issues, and another multidisciplinary team would pick one to use in a video. The hospital’s communications department would handle the actual production, including writing a script, shooting and editing the video, and formatting it into a PowerPoint presentation.

Once the hospital administration approved the final video, it would be uploaded to the hospital’s intranet. The hospital’s various department heads and team leaders would be notified of the new video. The leaders would then be responsible for showing the video to their teams. The hospital produced one video a month for eight months. Hospital leaders reportedly accessed the videos more than 3,500 times during that period, and eighty-three percent of them showed the videos during staff meetings. A majority of leaders said in survey responses that the videos were a “very” or “extremely” successful means of communication. The hospital permanently adopted the program, and has expanded it to share other information besides medication errors.

Hospital Allegedly Gives Infant Incorrect Dosage of Medication for Meningitis Treatment

February 6, 2014 | Lebowitz & Mzhen

The parents of an infant allege that a California hospital is responsible for injuries that required their child to go on life support. Hospital staff reportedly administered far more than the prescribed dosage of medication while treating the child for meningitis. Doctors, nurses, pharmacists, and other medical professionals have a very high degree of responsibility to their patients and the public. A catastrophic injury can result from a seemingly simple pharmacy error, such as a misspelled word or a transposed digit that causes a patient to receive far too much, or not nearly enough, of a drug.

According to news sources, the child was born several weeks premature. He was calm and quiet at first, but began to get “fussy” when he reached one month old. A doctor diagnosed him with viral meningitis, an infection of the membranes around the brain and spinal cord that can be debilitating or fatal if not treated promptly. The child’s parents took him to a hospital for treatment.

A physician at the hospital prescribed an antiviral medication called Acyclovir. After the drug was administered, the hospital pharmacist reportedly told the family that the child had accidentally received about ten times the prescribed amount. The child’s heart stopped several hours later, and his brain started swelling. According to the most recent reporting, he had some brain activity but required the use of a ventilator. The child’s father said that hospital staff told him there was not much more they could do for the child, who was by then six weeks old. One possible option, as described by the press, was for the hospital to provide a ventilator the child could use at home.

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

January 30, 2014 | Lebowitz & Mzhen

In 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.

Pharmacist Can Give Expert Testimony About Physician’s Duty to Obtain Informed Consent, Maryland Appellate Court Rules

January 22, 2014 | Lebowitz & Mzhen

A pharmacist may offer expert testimony in a wrongful death lawsuit regarding a physician’s alleged failure to obtain a patient’s informed consent, according to a ruling by the Maryland Court of Special Appeals. Fusco v. Shannon, 63 A.3d 145 (Md. Spec. App. 2013). The trial court excluded testimony from the plaintiffs’ expert witness, a pharmacist, holding that he was not qualified to offer an opinion on a physician’s professional duties. The case went to trial without the pharmacist’s testimony, and the jury found in favor of the defendants. The appellate court reversed the judgment and remanded the case to the trial court.

The decedent, Anthony Fusco, Sr., was eighty-two years old when he received a diagnosis of “low-risk” prostate cancer in 2001. By early 2003, he and his doctor decided to begin a course of treatment that included radiotherapy. He met with a doctor who explained the nature and risks of radiation treatments, including possible inflammation of surrounding organs. The doctor referred him to Dr. Shannon to prescribe a protectant medication to reduce the risk of radiation damage. Dr. Shannon prescribed Amifostine, and would later claim that he explained the risks associated with the drug, such as nausea, skin reactions, and blood pressure issues.

The Amifostine treatments began in April 2003 and continued for about a month. He received twenty-three injections, seemingly without incident, but on May 17, 2003, the day after receiving his twenty-fourth dose, Mr. Fusco was hospitalized with a severe skin reaction. He was diagnosed with Stevens-Johnson syndrome, a rare but serious skin condition, which Dr. Shannon suggested was a reaction to the Amifosine. After several hospitalizations, Mr. Fusco died of a stroke allegedly resulting from Stevens-Johnson on December 4, 2003.

Similar Drug Names Can Cause Confusion, Catastrophe if Pharmacy Makes an Error

January 15, 2014 | Lebowitz & Mzhen

Confusion between two similarly-named drugs can be harmful or even fatal if the error is not detected quickly. An error could result from any number of circumstances, such as a pharmacist who misreads a doctor’s handwriting or a nurse who accidentally administers the wrong drug. The U.S. Food and Drug Administration has procedures for comparing new drug applications to existing drugs, but this does not guard against confusion regarding drugs that are already on the market. A pharmacy journal published an account last year of one such medication error at an oncology clinic, which fortunately did not result in any complications for the patient who received the wrong medication. A version of the drug she received, however, has been implicated in numerous injuries and lawsuits.

The journal Hospital Pharmacy included an account in its June 2013 issue of a fourteen year-old girl diagnosed with acute promyelotic leukemia (APL) who received the wrong medication for about four months. APL, according to the authors, can quickly turn fatal and requires immediate treatment. Her doctors prescribed an oral dose of trentinoin, a vitamin A derivative commonly prescribed in a topical form under the name Retin-A to treat and prevent acne. It is administered orally in 10-miligram capsules to treat APL. The same basic effect that treats acne can also fight cancer cells.

After completing a course of treatment, the patient returned to the hospital about a month later. Her doctors decided to do several rounds of outpatient intravenous chemotherapy and continue the oral trentinoin. A nurse in the oncology clinic, possibly unfamiliar with the drug, instead called in a prescription for isotrentinoin under the brand name Claravis. While similar to trentinoin, isotrentinoin is primarily used to treat severe acne. It was formerly marketed as Accutane, but the manufacturer discontinued the brand in 2009, allegedly in part because of lawsuits claiming harmful side effects.

Court Finds Failure to Warn and Design Defect Claims Preempted in Lawsuit Against Generic Antibiotic Manufacturer

January 8, 2014 | Lebowitz & Mzhen

A federal court dismissed most of the causes of action in a lawsuit alleging that a generic antibiotic caused a dangerous, potentially-fatal reaction. Wilson v. Amneal Pharmaceuticals, LLC, No. 1:13-cv-00333, order (D. Id., Dec. 31, 2013). The lawsuit asserted claims under Idaho state law, but the decision is similar to federal court decisions in other states involving generic drug manufacturers. Federal laws and regulations make recovery of damages difficult for injuries caused by generic drugs.

The plaintiff’s doctor prescribed Bactrim, a generic antibiotic manufactured by the defendant, Amneal Pharmaceuticals. After taking the medication for one week, the plaintiff reportedly developed Stevens-Johnson syndrome, a reaction to a medication or infection that causes painful rashes and blisters. It can be very difficult to treat, and in severe cases, can cause permanent injury or death. The plaintiff sued Amneal in state court, asserting seven causes of action including defective design, negligent manufacture, and failure to warn. Amneal removed the case to federal district court based on diversity jurisdiction. It attached various FDA documents to its answer, including formal approvals of changes to the drug label.

Amneal moved the court to take judicial notice of the documents it produced with its answer, and to dismiss the plaintiff’s complaint for failure to state a claim on which the court could grant relief. The plaintiff opposed the motion for judicial notice and moved the court to allow discovery to proceed. The court denied the plaintiff’s motion and granted the motion to take judicial notice. Judicial notice is proper, it held, when the evidence in question is widely available or a matter of public record. It found that all of the documents in question were easily obtainable online, and that no one disputed their authenticity. The court proceeded to decide the motion to dismiss without the introduction of any further evidence besides the pleadings.

Employment Lawsuit Reveals Potential Illegal Pharmacy Operation

December 26, 2013 | Lebowitz & Mzhen

A federal employment termination lawsuit against a major corporation had the unintended consequence of revealing a potentially unlawful scheme of illegally operated pharmacies. Please note, however, that just because a former employee made allegations in his complaint doesn’t necessarily mean that they are true. Individuals can allege anything they want in a complaint, and may have a greater incentive following termination.

The case, Weidman v. EXXON MOBIL CORPORATION, Dist. Ct., ED Va. (2013), was filed in federal court following the plaintiff’s termination after nearly four years of employment.

The plaintiff was employed as a senior physician in a Virginia office, and claims that, after working for the company for two years, he discovered that it had been operating illegal pharmacies. Plaintiff claimed that large quantities of medication were being illegally stockpiled in the clinic in which he was working, as well as in other locations. Plaintiff did not state for what reason the medication was being collected. He further alleged that many of the senior managers were aware of the illegal activities, and that they requested he participate in a purported scheme involving a pharmacy which was allegedly distributing the stockpiled medications to ExxonMobil employees.