Pharmacist Malpractice Liability and Risk Management

Question 1

Malpractice

Answer 1

Negligence and a type of tort

Question 2

Negligence

Answer 2

Is an unintentional act that causes harm, as contrasted from intentional torts

Question 3

What is the purpose of Negligence or Malpractice Laws?

Answer 3

To compensate the victim and to deter careless and irresponsible acts

Question 4

Settlements are common in malpractice but do they establish precedent?

Answer 4

NO

Question 5

Summary Judgment means that there is no issue of material fact that would change the way that the ruling should go, and when appealed they what?

Answer 5

Establish Precedent

Question 6

What are the FOUR elements of Negligence that are required in a plaintiff and must have a preponderance of evidence?

Answer 6

1. Duty Owed
2. Breach of Duty
3. Causation
4. Damages

Question 7

What are the types of Affirmative Defense that a pharmacist can take?

Answer 7

1. Contributory Negligence
2. Statue of Limitation

Question 8

Duty of Care

Answer 8

Objective standard requiring a degree of care that a reasonable, prudent pharmacist would use under similar circumstances

Question 9

Pharmacist are held to an ERROR FREE standard for mechanical type acts that do not require professional judgement, but any decision that requires professional judgment will be based on what?

Answer 9

Resonableness

Question 10

Breach of Duty

Answer 10

1. Non-Judgmental Error in filling (misfiling) a Rx is a breach of duty as a matter of law
2. Doctrine of negligence per se means that if a pharmacist violates a state or regulation the violation in itself could establish negligence

Question 11

Causation: Actual Cause

Answer 11

Plantiff must prove defendant’s negligent conduct was a substantial factor in the harm caused

Question 12

Causation: Proximate Cause

Answer 12

A determination of the extend to which the defendant should be held liable for the conduct

Question 13

What are actual damages?

Answer 13

1. Loss of Income
2. Medical Expenses
3. Pain and Suffering

Question 14

What is the Eggshell Rule?

Answer 14

Must accept patient as he/she is

Question 15

What are Punitive Damages?

Answer 15

1. Awarded for willful or reckless negligence
2. Considered as punishment
3. Meant to punish the party that is being sued

Question 16

Contributory Negligence

Answer 16

If the plaintiff has even 1% responsibility in their own injury, then might not be compensated at all

Question 17

Comparative Negligence

Answer 17

Splitting up the responsibility up by percentage and then the jury decides how much compensation will be awarded and defendants will pay their percentage of the total

Question 18

Statue of Limitations

Answer 18

1. Plantiffs must bring claim within a specified period of time
2. Statue of repose limits the discovery period time/time during which a case of action can arise
3. 2 YEAR time period for torts in Oklahoma

Question 19

Assumption of Duty

Answer 19

A pharmacy will be held liable when it voluntarily assumes a function that it was under no legal obligation to assume and a patient relies on that function to his/her detriment

Question 20

What is the goal of risk management?

Answer 20

To reduce the incidence of pros thus protecting patients

Question 21

What is does an effective Risk Management require?

Answer 21

Develop of quality control systems

Question 22

What falls under Risk Assessment?

Answer 22

1. Risk Identification – most important
2. Risk Analysis
3. Risk Evaluation

Question 23

Corporate Negligence

Answer 23

1. Differs from professional negligence, it establishes that a corporation is responsible and liable for its own acts, apart from the acts of its employees
2. Focuses on the company’s system as a cause of errors, rather than the individual
3. A LOT of punitive damages

Question 24

Is it important to have individual malpractice insurance even if you are covered by an employer?

Answer 24

YES

Question 25

Drug Product Liability

Answer 25

Professional liability focuses on the conduct of the pharmacist as the factor in why a drug product was not safe, whereas drug product liability focuses on the PRODUCT ITSELF

Question 26

Critical to any product liability action, the product must be proved defective, what are the THREE categories of defect?

Answer 26

1. Design
2. Manufacturing
3. Warning

Question 27

What are the grounds for Product Liability?

Answer 27

1. Negligence
2. Breach of Warranty
3. Strict Liability SL

Question 28

Vicarious Liability: Respondent Superior

Answer 28

1. Employee responsible for the negligent act of employees
2. Purpose of the rule: to cause employers to hire and train competent employees
3. Plaintiff has right to sue employer and/or employee

Question 29

Traditional Rule of Law

Answer 29

Historically courts have taken the position that a pharmacist has not legal duty to warn a patient of adverse effects of a drug the pharmacist’s duty to accurately dispense the Rx as written

Question 30

Reasons for Traditional Rule of Law

Answer 30

1. Relationship
2. Physician Primary
3. Foreseeability
4. Social Policy

Question 31

Duty of a pharmacist to provide expanded patient services based on what THREE factors?

Answer 31

1. Relationship
2. Foreseeability
3. Public Policy

Question 32

Court found pharmacists have NO general duty to warn absent “special circumstances” which include what?

Answer 32

1. Special instructions by manufacturer to warn
2. Contraindications
3. Special knowledge by pharmacist of patient’s condition