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A Case of the Wrong Drug: Pharmacy and Prescribing Malpractice

Steven E. North, Esq. and Laurence M. Deutsch, Esq.

North & Deutsch has successfully concluded cases in which pharmacies incorrectly filled prescriptions that otherwise would have been proper. For example, we represented the family of a young woman who unfortunately died after being given an ineffective anti-malarial drug. The pharmacy had substituted a drug it thought was equivalent to the one prescribed, but which actually was not a functional equivalent.

We also had a case that resulted from the administration of the wrong medication to an HIV patient, ultimately making it impossible for that patient to use an entire class of medications that constitute the last line of defense for HIV/AIDS. If the disease advances, the prognosis for the patient’s future will be much worse than it might have.

If you listen to a television commercial for a drug product, it will immediately become apparent that medications carry with them the potential for many serious side effects. The list, it seems, is endless, moving from minor annoyances all the way to death. Not all reactions, though, even serious ones, form the basis for a malpractice case. If someone experiences a known adverse reaction to a medication, for example, there is often little basis on which to proceed with a malpractice claim.

However, a case can and often should be brought if a patient with a known allergy or sensitivity to a drug is given what amounts to the wrong medication. Such a case can be particularly strong if the contraindication, or drug allergy, is documented in the patient’s medical records; anaphylactic reactions to known allergic substances can be fatal. Other reactions to a contraindicated medication, while not causing death, can also be serious enough to warrant a case. However, if a patient has a transient or minor reaction, any potential claim would be de minimis, too trivial or minor to merit consideration for a medical malpractice claim.

Our practice has also successfully prosecuted cases in which the right drug was given in the wrong dose or administered improperly (e.g., giving the same drug via an artery or a vein can itself mean the difference between life and death).

In addition to the profound side effects a drug may prompt because of its substance, a recent study cited in The New York Times indicates that the catalyst for a reaction may not be not the drug itself but, rather, the patient’s brain. Patients who are aware of the potential side effects of a drug, according to the study, are more likely to complain about them than patients who do not know what they are. This type of effect will not produce anaphylaxis or a fatal reaction, but a person’s psychological predisposition can have a real effect on his or her response to medication, which is something to take into account if relatively minor side effects have been investigated and found to have no medical cause.

Similar results were reported on Medscape.com, a medical education website, about a study that focused specifically on reactions to statins and beta blockers. Both studies suggest that complaints of ill effects from drugs may have a significant psychological factor. The brain can fool the body.

The various, TV-advertised class actions for a given drug (“Have you taken Xeralto?) are another matter altogether. This type of case is its own specialty and involves a suit directly against the drug manufacturer, as opposed to the prescribing physician, for putting out an unreasonably dangerous drug. Such cases may be brought if there has been insufficient testing for a drug or manipulation of test data in the FDA approval process. While our firm can (and has) brought suits against physicians for improper drug prescriptions, this is an area outside of our own practice.

Litigation aside, how do you know whether to take a drug? Its potential risks must be weighed against its potential benefits. Are the odds in favor of the drug helping without causing serious side effects? Or does the likelihood of significant adverse effects from the drug trump its potential benefit? These are the questions that confront healthcare providers as well as patients.

If a serious reaction or injury has occurred from a medication, the patient should explore his or her options. There may be a legitimate case against the manufacturer, the prescribing doctor, or even against the pharmacy. Or, it may just be an unfortunate reaction for which there is no legal remedy. If there has been a truly serious consequence from a drug, you owe it to yourself and your family to get a real answer.

We have always emphasized the need for patients to be part of the decision-making process. If a patient does not insist on being informed, his or her medical course will be determined solely by healthcare providers.

The New York Times May 16, 2017, Page D4 and Medscape commentary: “The Power of Suggestion,” John Mendrola, MD, May 10, 2017