Health care and medication.
Fortunately for us all, medical care has evolved to a level of effective care and treatment never seen before. Illnesses that were once incurable have been eradicated, many catastrophic injuries no longer result in significant disabilities and prescription medication has been developed to treat seemingly countless symptoms and conditions.
It is to the use of medication that we turn our focus. So much of current medical care and treatment comes in the form of injections, pills and liquids that IBIS World confirms that the pharmacy/drug store industry in the United States now does close to 300 billion dollars per year in revenue. It employs over 723,000 people in over 27,000 businesses, which is actually not surprising when you realize that over 4 billion prescriptions were written in 2015 in the US alone.
Medicine is not an exact science, however.
Unfortunately, nothing is perfect. Despite all the laws, regulations, processes and safety measures imposed on and employed by the health care industry, all of which are designed to safeguard individuals from harm, mistakes are made. When they do, people often suffer. Sometimes the effects are minor. Sometimes they are major, perhaps even tragic.
A prescription mistake can be life-changing, if not life-ending. If you or a loved one has had such an experience, you might wonder whether you can sue your doctor for the prescription mistake. Depending on circumstances, yes you can. What’s more, you might be able to pursue legal action against other parties as well.
Why can you sue for a prescription mistake?
Under certain circumstances, a prescription mistake is referred to as a form of medical malpractice. Medical malpractice occurs as a result of negligence on the part of a health care professional. Most people assume that only doctors are responsible for such mistakes.
Not true. A drug manufacturer, the hospital or care facility staff that administers the drug, even the pharmacist may ultimately be held responsible for the mistake.
Medical malpractice is a very complex area of law, but the concept itself is fairly simple. In short, to establish that medical malpractice occurred, a party must be able to prove the following.
Proper guidelines were not followed.
The doctor, other health care professional and/or health care facility did not follow the proper guidelines or expectations to be followed under the circumstances for a specific patient. For example, a doctor may have been negligent if another qualified physician would not have made the same mistake in the same or similar situation.
In other words, what would a competent doctor using sources and methodology recognized and accepted by the profession have done/not done for the same patient? If the answer is something very different, there may have been professional negligence.
The patient suffered injury, illness or other harm because of the professional negligence.
However, the negligence itself isn’t sufficient grounds for a lawsuit if the injury, illness or other harm would have occurred even without the mistake. Put another way, could the negative outcome have been reasonably expected anyway? If not and evidence establishes that there likely would have been no harm if there had been no mistake, a court may make a finding of medical malpractice.
The harm must have serious consequences.
These would include the need for additional medical treatment, significant loss of income, substantial chronic pain or death. Simple discomfort or other dissatisfaction with the diagnosis, care, treatment or medication does not constitute sufficient harm for which you could recover in a lawsuit.
What would be considered a prescription mistake?
A prescription mistake can take one of several forms. These forms include:
Prescribing the wrong medication.
The physician prescribed a medication other than what the treatment called for. Even if the incorrect medication was intended to treat the same condition, it may have been inappropriate (if not unsafe) depending on the patient.
Prescribing an incorrect dosage amount.
The correct medication was prescribed but the wrong dosage was ordered or administered.
Providing incorrect instructions.
Perhaps the medication was supposed to be taken with food or not within a certain amount of time of the use of other medications. Again, depending on the patient, the result could put their health at risk. If it does, this would potentially be considered a prescription mistake.
A misread prescription.
This is often caused by the doctor’s illegible handwriting (an error compounded by the failure of the pharmacy to confirm with the doctor).
A prescription mistakes.
This can be made by the pharmacy when filling the prescription. Examples include dispensing an incorrect dosage, failure to warn of potential side effects, failure to provide proper instructions or providing the wrong medication entirely.
Pharmacies are often very busy places. Combine that with the number of medications routinely stored on the shelves and it’s easy to understand how a mistake can occur.
If a patient’s allergies have been identified but the physician prescribes a medication that he knew or should have known triggers one or more, then there is a good chance the doctor will be found negligent.
Negative interactions with other drugs.
Assuming the doctor is fully aware of all of the medications the patient takes, prescribing another that may interact negatively with those medications might be medical malpractice.
An error in dispensing the medication.
This type of prescription mistake is usually made by hospital staff or employees of a nursing home or other care facility. The facility “dispensary” may distribute the wrong medication or incorrect dosage or the nurse or assistant may administer an incorrect amount, administer medication too frequently or not frequently enough.
What can happen to someone because of a prescription mistake?
- Allergic reaction, from mild to very serious.
- Internal bleeding.
- Organ damage to, for example, kidneys, liver, lungs or brain.
- Chronic pain.
- A coma.
What if the prescription mistake wasn’t made by the health care professional but by the factory instead?
Although it is not considered a medical malpractice, there is one other variation of a prescription mistake – the defective manufacture of medication. Known as product liability, this type of negligence may entitle you to recovery for damages if the following can be proven:
- The production process itself was in some way defective;
- The drug design itself was defective; or
- The manufacturer did not provide adequate warning of the risks/side effects or failed to provide adequate instructions for use of the medication on the label or in documents provided with the medication.
The next step.
If after reviewing this information you believe that you or a loved one has been the victim of a prescription mistake, you may indeed be able to sue your doctor (or another party potentially responsible) for medical malpractice. Bear in mind, however, that this is a very complicated area of law. Not every personal injury lawyer is qualified to handle a lawsuit for the negligence of a medical professional.
Be sure to seek out an attorney with expertise in medical malpractice at Fontanella, Benevento, Galluccio & Smith for the information and guidance you need to determine whether you have a solid case to sue for a prescription mistake.
If you do, your lawyer will protect your interests and preserve your rights while pursuing the maximum recovery to which you may be entitled. A strong case and a competent attorney are a prescription for success, which is, as the saying goes, exactly what “the doctor ordered”.