The bottom line is: yes.
The need for pharmacy technicians to have their own malpractice insurance has become abundantly clear in recent years. Lawsuits due to pharmacy errors that include the technician are on the rise for a number of reasons. Attorneys who used to just see monetary awards from errant pharmacy owners and pharmacists now include in their gaze the technician who made or contributed to an error or mistake.
A school of thought that technicians do not need malpractice insurance does exist. Many states pharmacy law includes a statute or regulation that holds the pharmacist responsible for the actions of a technician. These laws seem to make clear that technicians have no responsibility as a licensed pharmacist must check the work of the technician prior to dispensing; any error or mistake should be caught by the pharmacist. If this does not occur, the pharmacist, not the technician, is at fault.
However, these laws are not currently taken as wholly as in the past. They are no longer 100% gospel. One issue with this is corresponding responsibility, which states that a pharmacist can be held as liable for dispensing a dangerous prescription as the practitioner who wrote it. Expanding on this concept, a technician who contributes to a pharmacy error can have some responsibility for the error. Thus, a technician who enters an incorrect strength that is not caught by the pharmacist may share in the liability if the error results in patient harm.
Another pivotal factor here is that the current pharmacist shortage has created a need to find additional means to meet patient needs, keep pharmacies open, etc. Several state boards of pharmacy are looking at expanding the role of the technician to meet these needs, as well as free up pharmacist time for more important duties. These expanded duties, in many states, would provide technicians with some level of professional responsibility. Technicians need, however, to understand that responsibility brings with it a concomitant liability
(Technicians who accept expanded duties should demand adequate training before assuming these duties. When purchasing malpractice insurance, the technician should make sure the carrier will cover these duties.)
Another factor in technician liability was the expansion of immunizations during the COVID pandemic. When the PReP Act indicated technicians could be trained to administer the COVID vaccine, states jumped on this and some enlarged this to include other vaccines. Technicians were trained to give the vaccine, but some errors were reported: the wrong vaccine was given, vaccines were given to ineligible patients, incorrect doses were administered, etc., all outside the control of the pharmacist on duty. Despite any rule that the pharmacist was responsible for the technician, state boards of pharmacy were hard pressed to punish those who may not have even been aware a vaccine was being administered. Technicians, on the other hand, have been punished by some boards for their errors.
The end result of the above-mentioned factors is that technicians, certainly those who engage in new or expanded duties, can face primary liability is lawsuits alongside pharmacists and pharmacy owners.
“What about employer malpractice if my employer says it covers me?” In most cases, this could be sufficient. Still, especially after a devastating error that caused death or substantial harm, having your own insurance is going to be a boon to you. Even if you are covered by your employer, keep in mind the insurance carrier’s primary loyalty is to the employer, not you. Having your own insurance would leave you free to work and have peace of mind that you are covered by an entity fully on your side.
How much malpractice does Pharmacy Law Source suggest? Between $250-500,000 per occurrence, $2 million aggregate. Still, we suggest you consult with different carriers and hear their recommendations. Check with technicians who already have malpractice insurance.
Questions: email PharmacyLawSource@gmail.com
I have a patient with a chronic medical condition. He was prescribed drug X. Drug X has an uncommon adverse effect, but people with this patient’s condition see this adverse effect to a much higher degree than the general public. Of course, patient suffered the adverse effect and has complained to the state board of pharmacy that I failed to counsel correctly.
The response to this is that you very well may have failed to counsel correctly.
The primary pre-requisite to dispensing a medication is that a pharmacist-patient relationship exists. In order for this to be, the pharmacist must obtain certain patient information: name, address, gender, allergies, prescription & OTC medications, CHRONIC MEDICAL CONDITIONS.
Along with the medication, this patient profile must be reviewed (a Drug Utilization Review, or DUR) prior to counseling so that the pharmacist can seek to counsel to that patient’s specific needs. Counseling points include drug, strength, proper dose, duration of therapy, storage conditions, what to do in the event of a missed dose, drug and medical contraindications, etc. Along with these is included common and clinically significant adverse effects.
Obviously, if you were not made aware of the condition, and the adverse effect is not seen commonly in persons that do not have this condition, counseling without this drug-induced adverse effect is proper.
However, you acknowledge that your pharmacy was aware of the patient’s chronic condition. Then it became incumbent upon you to discuss in your counseling any drug interactions or drug-induced effects that were common (and clinically significant) to this drug-condition combination. Here, the literature supported the existence of a common adverse effect.
Thus, you may well be subject to board action for failure to counsel.
Pharmacists need to remember that failure to counsel is the second highest reason pharmacists and pharmacies are sued. Even in the current environment where being short-staffed is almost a way of life, this requirement of patient care must be given the time and effort required by law.
QUESTIONS: email PharmacyLawSource@gmail.com or comment below
I practice at an independent pharmacy. Calling a ******* chain pharmacy averages 10-15 minutes of being on hold before I or my staff ever gets to a person. In response, when the chain pharmacy calls me, I leave them on hold for several minutes so they can see what it is like: frustrating and time-consuming. Recently, a patient saw me do this and asked what was going on. A staff member explained. The patient filed a complaint with the state board of pharmacy.
Am I in trouble?
Quite possibly, yes.
Though PLS understands your frustration and has had the same experience many times, this is what the patient saw:
Delay in care.
Whatever the chain pharmacy was calling about—transfer out, transfer in, patient info, check on drug availability—the result was that some aspect of patient care was put off while you retaliated. “Delay of care” is usually not listed in state pharmacy law as a violation of pharmacy law, but “unprofessional conduct” is.
Unprofessional conduct is defined as conduct that is unethical, dishonest or FALLS BELOW THE STANDARDS OF YOUR PROFESSION. This covers a range of conduct and behavior when we practicing. It is also a reminder that pharmacists have standards of practice to meet due diligence in providing patient care. Not delaying patient care, even for a few minutes, fits into that category.
Should your state board of pharmacy decide your act in leaving the chain pharmacy on hold unnecessarily falls into the unprofessional conduct law, you are going to have the burden of showing that no delay in care resulted from this.
Again, your frustration is understandable and is shared by many of your colleagues. But be professional.