© 2010 Pharmacists Mutual Ins. Co. Medication Errors: What Are The Risks and What Can I Do About Them? by Don R. McGuire Jr., R. Ph., J.D. General Counsel Pharmacists Mutual Insurance Company May 14, 2010 Maine Pharmacy Association

© 2010 Pharmacists Mutual Ins. Co. Intentional Torts Assault Assault Battery Battery False Imprisonment False Imprisonment Defamation Defamation Invasion of Privacy Invasion of Privacy Malicious Prosecution Malicious Prosecution

© 2010 Pharmacists Mutual Ins. Co.Negligence Elements Elements –Duty –Breach of Duty –Damages –Proximate Cause

© 2010 Pharmacists Mutual Ins. Co. Duty The requirement to behave in a certain manner for the benefit another The requirement to behave in a certain manner for the benefit another Does not mean warning about everything Does not mean warning about everything The actor must take reasonable steps to prevent foreseeable harm The actor must take reasonable steps to prevent foreseeable harm Professionals have different duties than “ordinary” people Professionals have different duties than “ordinary” people

© 2010 Pharmacists Mutual Ins. Co. Breach of Duty Standard of Care – how you know when the duty is performed Standard of Care – how you know when the duty is performed Reasonable Person Standard – what would a reasonable person do in the same or similar circumstances? Reasonable Person Standard – what would a reasonable person do in the same or similar circumstances? Legal Standard – law requires certain behavior Legal Standard – law requires certain behavior Others – professions, codes of ethics, etc. Others – professions, codes of ethics, etc.

© 2010 Pharmacists Mutual Ins. Co. Breach of Duty Failure to perform the Duty (nonfeasance) Failure to perform the Duty (nonfeasance) Duty performed inadequately or incorrectly (malfeasance) Duty performed inadequately or incorrectly (malfeasance) Breach when Rx filled incorrectly easy to spot Breach when Rx filled incorrectly easy to spot

© 2010 Pharmacists Mutual Ins. Co. Proximate Cause The breach of the duty must be the direct cause of the injury The breach of the duty must be the direct cause of the injury Superceding or Interceding Cause Superceding or Interceding Cause Can be lack of drug or addition of drug or both Can be lack of drug or addition of drug or both

© 2010 Pharmacists Mutual Ins. Co. Damages (Harm) Patient must have been harmed in order to be compensated Patient must have been harmed in order to be compensated Many states require underlying physical injury to make claim for emotional injury Many states require underlying physical injury to make claim for emotional injury Harm if not taken? Harm if not taken?

© 2010 Pharmacists Mutual Ins. Co. Defenses to Negligence Contributory Negligence Contributory Negligence Comparative Fault Comparative Fault Assumption of the Risk Assumption of the Risk

© 2010 Pharmacists Mutual Ins. Co. Contributory Negligence Common law concept Common law concept Plaintiff cannot be even 1% at fault and still recover Plaintiff cannot be even 1% at fault and still recover Defense merely needs to show some fault by plaintiff to win Defense merely needs to show some fault by plaintiff to win

© 2010 Pharmacists Mutual Ins. Co. Comparative Fault Replaces Contributory Negligence Replaces Contributory Negligence Plaintiff has their percentage of fault subtracted from the damages award Plaintiff has their percentage of fault subtracted from the damages award 2 versions – Pure - plaintiff recovers damages, less their % of fault 2 versions – Pure - plaintiff recovers damages, less their % of fault –Modified – If plaintiff responsible for 50% or more, then no recovery

© 2010 Pharmacists Mutual Ins. Co.Remedies Compensatory Damages Compensatory Damages Punitive Damages and Exemplary Damages Punitive Damages and Exemplary Damages Injunction Injunction

© 2010 Pharmacists Mutual Ins. Co. What Can I Do? Protect yourself & your patient! Risk Management Techniques 1. Avoid the risk. 2. Control the environment. 3. Retention of the financial risk. 4. Transfer of the financial risk.

© 2010 Pharmacists Mutual Ins. Co. 1. Identify the Risk 2. Select the Technique 3. Implement the Technique 4. Monitor and make necessary changes Controlling the environment-- The Risk Management Process

© 2010 Pharmacists Mutual Ins. Co. Pharmacists Mutual Claims Study through 2009 Notes: *Non-bodily Injury = release of conf. information, false arrest, libel, slander

© 2010 Pharmacists Mutual Ins. Co. Pharmacists Mutual Claims Study through 2009 *Others

© 2010 Pharmacists Mutual Ins. Co. Pharmacists Mutual Claims Study 2010 Drugs Delivered in Mechanical Claims

© 2010 Pharmacists Mutual Ins. Co. Triple Check Plus Two Check three times Check three times Plus 1 --Check NDC numbers Plus 1 --Check NDC numbers Plus 2 --"Show & Tell" Plus 2 --"Show & Tell" –Never deliver a prescription "in a bag"

© 2010 Pharmacists Mutual Ins. Co. Risk Management & Patient Care  “What did your doctor tell you this was for?”  “What are your allergies?”  “What other medication are you taking?”  “What possible side-effects did the doctor go over with you?”

© 2010 Pharmacists Mutual Ins. Co. Pharmacist Only Questions Why does my medication look different this time? Why does my medication look different this time? Why are the directions different from those my doctor told me? Why are the directions different from those my doctor told me? Are you sure you spelled my doctor’s name correctly? Are you sure you spelled my doctor’s name correctly? If I’m allergic to aspirin can I take this? If I’m allergic to aspirin can I take this?

© 2010 Pharmacists Mutual Ins. Co. The Problem with Telephoned Rx Dr.. meant Lidex... Dr.. meant Lidex the pharmacist heard and filled the prescription with the pharmacist heard and filled the prescription with...Rx patient: John Efudex 1 tube Sig: Apply ut dic

© 2010 Pharmacists Mutual Ins. Co. The Telephone Rx “Echo & Verify”

© 2010 Pharmacists Mutual Ins. Co. Telephone Rx Patient: Betty Smith Penicillin VK 250 mg # 30 Sig: i tid Dr. Smith by Nancy, RN Telephone Rx Patient: Betty Smith Penicillin VK 250 mg # 30 Sig: i tid Dr. Smith by Nancy, RN Telephone Prescriptions V 10/22/04 drm

© 2010 Pharmacists Mutual Ins. Co. 2 Dosage Unit Rule  Technicians cannot know usual dose of every drug  Typical prescriptions do not need more than 2 units to deliver the dose  Sigs with 3 or more units should be flagged for R.Ph. review

© 2010 Pharmacists Mutual Ins. Co. "Mark It" Identify those prescription items causing "problems" Identify those prescription items causing "problems" Place colored tape on that part of the shelf Place colored tape on that part of the shelf To cause "a second thought" To cause "a second thought"

© 2010 Pharmacists Mutual Ins. Co. If You Didn’t Document It, It Wasn’t Done. but … Where?When?What?

© 2010 Pharmacists Mutual Ins. Co. What NOT to do... Excerpt from letter from patient's attorney to pharmacy... "As you are already aware Mrs..... _________ attempted to contact you regarding this error and was told, 'If you aren't dead, don't worry about it." The patient immediately hired a lawyer.