Medication errors lead to lawsuits across the country

Celebrity cases such as Heath Ledger’s recent death from mixing prescription drugs and Dennis Quaid’s newborn twins receiving an adult dose of a blood thinner only scratch the surface of a growing number of lawsuits over medication errors.

The suits include claims against pharmacies for errors in filling prescriptions, doctors and hospitals for mistakes in dosage, nursing homes for giving the wrong pills to patients and manufacturers for labeling.

“A lot of errors happen. People are rushed. Pharmacists, hospitals, doctors and nurses have too many patients and not enough time,” said Karen E. Terry, a trial lawyer who practices with Searcy Denney Scarola Barnhart & Shipley, P.A., in West Palm Beach, Fla. who recently won a $25 million verdict against Walgreens for improperly filling a prescription, and has two other pending cases against Walgreens.

Medication errors are “endemic” in nursing homes, said Steven Levin, a medical malpractice attorney with Levin & Perconti in Chicago who has handled a number of cases against nursing homes and pharmacies. “I don’t even think we’ve seen the tip of the iceberg.”

A recent study by the Harrison School of Pharmacy at Auburn University in Auburn, Ala., found that “dispensing errors are a problem on a national level,” and estimated that 51.5 million prescription errors occur during the filling of 3 billion prescriptions each year.

The rise in suits is fueled in part by the explosion of new drugs on the market.

Nathaniel Lee, a partner with Lee, Cossell, Kuehn & Love, LLP in Indianapolis, Ind., who handles about 50 cases a year involving medication errors, said the number of generic brands is a factor because now there are many different versions of the same drug with similar packaging.

In addition, aggressive direct-to-consumer marketing has popularized drugs and put pressure on physicians to prescribe them.

“The public has a perception that there’s a drug for everything and physicians feel they are not really treating unless they prescribe a drug,” said Douglas Peters, who practices with Charfoos & Christensen, P.C. in Detroit. Peters has filed a suit against Walgreens over a medication mix-up.

Roseann Termini, a professor at Villanova Law School and author of Life Sciences Law, said direct-to-consumer advertising could arguably lead to greater responsibility being placed on manufacturers and pharmacies for medication errors.

Here’s a look at the various claims that are arising:

• Pharmacy errors

Some recent verdicts against Walgreens suggest that claims for misfilled prescriptions are on the rise.

In October 2007, a jury in Arizona awarded $6 million to the family of a high school coach in a wrongful death suit against Walgreens for failing to warn him that two pain medications created a deadly combination. In September 2007, a Florida jury awarded $28.5 million to the family of a woman who was given a 10 mg dose of the blood thinner Coumadin by Walgreens instead of the 1 mg dose that she was prescribed.

And in October 2006, a Chicago jury ordered Walgreens to pay $31 million to the family of a man who died after being given insulin pills instead of gout medication.

“The trend in this type of error is going up in direct proportion to big-box pharmacies using production quotas and relying on pharmacy technicians instead of pharmacists,” said Peters.

Common pharmacy malpractice claims include negligent filling of prescriptions, inadequate training and supervision of pharmacists and staff, and the creation of financial incentives that create a conflict of interest between pharmacists and patients.

“The pharmacy technician’s job is to put pills in the bottle and the pharmacist is supposed to validate that the pills in the bottle correspond with the prescription. Pharmacists are supposed to validate 60 bottles per hour. That’s one per minute, so they have financial incentives to meet productivity goals,” said Peters.

In addition, every state has its own regulations for pharmacy duties, such as a duty to counsel that in some states covers all prescriptions, including refills, and can provide a rebuttable presumption of negligence if violated.

“Over the last 15 years, the responsibilities of pharmacies have greatly increased,” said David Work, former executive director of the North Carolina Board of Pharmacy. “In North Carolina and many other states, pharmacies are required to provide not only counseling but drug use review on every dispensing, including refills, and that probably isn’t getting done with increases in prescription volume.”

Lawyers note that pharmacies have insisted on confidentiality agreements for the many settlements they have reached in these types of cases.

• Health care providers

Med-mal claims against hospitals for giving patients the wrong medication or incorrect dose are also on the uptick.

“Doctors are forced to see 50 to 60 patients, are getting paid very little by Medicaid, and they are going to make mistakes. And nurses aren’t given as much training as they should be given,” said Terry.

Terry is currently representing a patient against both Walgreens and a doctor over a prescription for different doses on alternating days which would have required the patient to break a pill into fifths or eighths. It was ultimately misfilled by Walgreens, resulting in a dosage 5 to 15 times what was prescribed.

Another source of error involves misunderstanding of physician handwriting by those administering the medication, and the failure to call the doctor to confirm the prescription.

• Nursing homes

Medication errors also occur in nursing homes, in some cases due to overburdened staff.

“Combine insufficient staff with older people taking multiple medications. Anything requiring monitoring or testing is a scary situation when done in a long-term care facility,” said Levin.

He has handled several cases involving Coumadin dosages which he says are “routinely screwed up” by nursing homes and will cause cerebral hemorrhaging or stroke in the wrong dosage.

He added that insulin Accu-chek doses, which must be reported to physicians, are another source of errors at long-term facilities.

• Drug labeling

Another legal claim is that the drug manufacturers’ labeling was negligent.

Quaid and his wife, for example, have sued Baxter Healthcare Corp. alleging that the packaging and labeling of two similar drugs was “unreasonably dangerous,” resulting in their newborn twins being administered a blood thinner 1,000 times the dose ordered.

Baxter manufactures Hep-lock in 10-ml vials and Heparin in 10,000-ml vials, both in bottles with a blue background.

The complaint alleges that Baxter failed to recall Heparin after the company became aware of other infant deaths due to the mix-up, failed to change the drug packaging or warn health care providers of the easily-confused packaging.

Lee represents four families of babies, three of whom died from the same mix-up between Heparin and Hep-lock. He has not filed suit yet, but he has met with Baxter’s attorney to discuss alternative packaging that would make one of the bottles pink.

He is pursuing negligence claims against the hospital in those cases.

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writer at: sylvia.hsieh@lawyersusaonline.com