Pharmacists are responsible for prescription errors


Pharmacists and doctors are liable for medical prescription errors

Pharmacists are also liable for prescription errors made by doctors. According to a recent ruling by the Cologne Higher Regional Court (OLG), pharmacists who “grossly incorrectly deliver the wrong medication to a patient” are obliged to prove “that the damage is not due to the wrong medication” in the event of possible damage to health The burden of proof has long been applied to gross errors in treatment by doctors.

The OLG Cologne has special responsibility for medical liability proceedings and with the current verdict, the judges have decided on one of the previously unresolved liability questions. Previously, it was unclear whether pharmacists would be liable if they handed out the wrong medication on the basis of a prescription incorrectly written out by the doctor. The Cologne Higher Regional Court (OLG) in its current ruling (file number: 5 U 92/12) made it clear that pharmacists with such a grossly incorrect medication supply also have the burden of proof to refute possible damage to health of the patients.

Wrong medication caused cardiac arrest In the procedure on which the OLG's fundamental decision was based, the judges had to decide on the case of a child that was born in June 2006 with Down syndrome (free trisomy 21) and a heart defect. The boy was due to undergo heart surgery in September 2006 and until then treatment with a digital heart-strengthening drug. "Due to an oversight, the doctor issued the prescription in an 8-fold excessive dosage," reports the OLG Cologne in a current press release on the verdict. After taking the overdosed medication for a few days, the boy suffered a cardiac arrest and had to be resuscitated over 50 minutes. The child's intestine was also damaged. The parents then sued both the doctor and the pharmacist for damages and payment of pain and suffering in the amount of at least 200,000 euros.

Pharmacists should have recognized prescription errors The OLG Cologne found that five years after the wrong treatment, the boy had brain damage in the form of a significant developmental deficit. At the age of five, the plaintiff was still unable to speak, walk or eat on his own, the court said. However, it has so far remained unclear "whether the developmental deficit is due to incorrect medication and the lack of oxygen after cardiac arrest or the congenital genetic defect", the court said. Here, however, the judges do not see the burden of proof on the plaintiff, rather the doctor and the pharmacist would have to prove that the damage was not caused by the overdose. According to the OLG, they have not succeeded in doing this. The pharmacist also had to answer because he should have recognized the overdose given the age of the patient. With its verdict, the OLG basically confirmed the previous conviction of the defendants and only left the amount of the compensation for pain and suffering open, the official announcement.

Burden of proof in the event of gross errors by doctors and pharmacists, up to now The reversal of the burden of proof has previously only applied to grossly faulty treatments by doctors, but has now been transferred to pharmacists by the OLG. It has long been a rule for doctors that the burden of proof lies in the case of a simple treatment error on the part of the patient, which means that the patient must prove that the damage is attributable to incorrect treatment. "In the case of a gross treatment error, on the other hand, it is assumed that the damage is causally attributable to the error," said the Cologne Higher Regional Court. Since February of this year, this has also been expressly regulated by law in the Patient Rights Act (Section 630h (5) BGB). According to the current verdict, these principles will in future also be transferred to the liability of pharmacists. In the current case, there was a gross mistake by the pharmacist, since when dispensing such a highly dangerous drug, he would have had to take special care and recognize the error in the prescription, according to the court's assessment. "The application of the principles of gross treatment errors to comparable serious errors by pharmacists is advisable because the factual and interest situation is the same," reports the OLG. With such incorrect administration of medication, the interaction between doctor, pharmacist and medication cannot be sensibly separated. Due to the scope of the fundamental decision, the Cologne Higher Regional Court approved revision to the Federal Court of Justice. (fp)

Image: Martin Berk / pixelio.de

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