Citizens of New Jersey, would it shock you to learn that in response to concerns about a dangerous increase in pharmacy-related prescription errors, your state legislature has introduced a bill, which if enacted into law, would preclude all forms of recourse should your pharmacist’s mistake cause you or your loved ones to suffer serious physical injuries.
Well it’s hard to believe, but amazingly true: pharmacists would receive total immunity from civil liability for any errors committed resulting in serious harm as long as the error was reported to the New Jersey Board of Pharmacy. Even more astonishing is the likely effect the legislation will have on the large national and regional pharmacy chains- complete insulation from liability for the negligent acts of their pharmacist employees.
In 2003, Auburn University conducted a study of retail community pharmacies and dispensing errors. The study revealed the error rate was nearly one error per 55 prescriptions filled (1.72%). The researchers concluded that, for more than three billion prescriptions dispensed nationwide, 51.5 million pharmacy errors occur annually.
Just so we are all on the same page, I will define a pharmacy-related error. A pharmacy -related error occurs when a pharmacist:
dispenses the incorrect medication;
dispenses the incorrect dosage of the correct medication;
dispenses the correct medication with incorrect instructions;
dispenses the incorrect drug quantity and strength; or
fails to take into account known drug allergies or dangerous drug interactions with other medications being taken by a patient.
“The Pharmacy Quality Improvement and Error Prevention Act”(A-1025) was passed in the New Jersey Assembly by an astonishing 76 to 0 vote in March 2006. As of this writing, the measure has been referred to the State Senate Commerce Committee for further consideration.
The bill was originally introduced to the New Jersey Assembly by Assemblyman Jeff Van Drew (District 1). Van Drew, a dentist, sponsored the bill in response to a series of articles printed in The Press of Atlantic City during 2002 that chronicled how patients were harmed by faulty prescriptions caused by improper labeling or dosage, increased pharmacists’ workloads and other mistakes.
“To err is human, but pharmaceutical mistakes pose serious, life-threatening consequences. Pharmaceutical errors should not be shrugged off as trivial, rare occurrences, particularly when dealing with drugs that can stop a heart, trigger allergic reactions, or lead to a patient’s death,” said Assemblyman Van Drew. See press release dated September 14, 2006. It is important to note that all press releases from NJ Legislators failed to mention any information about the fact that the bill also contains language that would totally limit the rights of all seriously injured victims of pharmacy errors to seek compensation through our civil justice system.
Here’s an overview of A-1025(I encourage everyone to link to the bill and read it in its entirety):
The bill begins with a discussion of a study that revealed that every year, more than 7,000 Americans die from medication errors and further, that the number of complaints filed with the New Jersey Board of Pharmacy concerning prescription errors has more than doubled in the past eight years. The bill calls for immediate action to reduce the possibility of prescription errors as they may seriously harm New Jersey citizens.
I agree whole-heartedly that intervening action is desperately needed in order to reduce pharmacy-related medication errors. With the increase in large retail pharmacy chains charged with generating large corporate profits, overworked pharmacy staffs are at risk of making life-threatening errors in increasing numbers. But my analysis of this bill suggests that public safety is not the driving force behind this legislation that the bill’s sponsors would like us to believe it is. It would seem that surrounding the pharmacy industry in a cloak of secrecy and immunity is the way some legislators believe that the public good will be best served.
The bill establishes a 24-member task force called the “New Jersey Task Force on Medication Error Prevention.” Out of the 24 members of this task force, 17 are considered “public members” and the remaining seven members are heads of state agencies, representatives of state medical boards, and the Dean of School of Pharmacy at Rutgers. Eleven of the 17 public members are appointed by the recommendations of representatives of organizations of pharmacies, chain drug stores, pharmaceutical manufacturers, mail service pharmacies and health insurance carriers.
The stated purpose of the task force is to provide guidelines to assist the New Jersey Board of Pharmacy in medication error prevention, pharmacy quality improvement, and in the development of consumer education programs. These guidelines also set forth the types of situations in which registered pharmacists would be required to report to the Board when they believe a medication-related error may have occurred.
Under the bill, where a patient has suffered “serious” or “significant harm,” a pharmacist would be required to report the error to the Pharmacy Board. The task force is also charged with considering what constitutes “serious” or “significant harm” and further, what information is required in such report.
The bill also requires pharmacies to establish what is called a “quality improvement program” designed to document, review and assess the medication related-errors for the purpose of minimizing the incidents. This information is potentially valuable for analyzing why, where and how pharmacy errors occur so that measures to prevent if not eliminate errors can be developed in response. But here’s the rub: any and all of the information gathered by a pharmacy’s “quality improvement program” concerning medication-related errors is to be considered privileged and confidential and per the terms of this bill, cannot be released to the public for any purposes. It is only allowed to be reviewed internally. I cannot really think of many other professions where the negligent acts of its brethren can be kept hidden from the public via government sanction.
The public is prevented from obtaining knowledge as to whether the pharmacist who regularly fills their prescriptions has a history of committing dispensing errors, because that information is privileged. The State believes this is good for the public; the theory is that it will encourage pharmacy professionals to come forward and admit mistakes, hopefully learn from them and not repeat them. In effect, under the guise of public safety, it is the pharmacist who gets the protection after committing an error, and it is the public who is left out in the cold.
And I wonder how we would ever know whether this plan works in reducing dispensing errors if we are not able to gather the data surrounding dispensing errors?
If the confidentiality provision of the bill didn’t grab your attention, maybe the total immunity concept will. Check this out:
Section 9, subsection c of the bill provides in relevant part that registered pharmacists who reports information to the Board relating to a medication-related error, shall be immune from liability in a civil action for any injury or damages in connection with that medication–related error.
My fellow New Jerseyans, it is time to wake up and realize what is going on here. This legislation is designed to create a protected class of people who are immune from liability and who are also allowed to self regulate bad behavior in secret under the guise of protecting the public at large. How would the public ever know if this legislation actually achieves its stated purpose when all of the data is completely sealed off from the public?
Regardless of how egregious the medication error or how serious the harm, the victim will be left with absolutely no remedy. He or she is supposed to be content with the fact that the Board shall police itself. Your right to protect yourself from injury by the negligent acts of pharmacies has been stripped away, all in the name of reducing pharmacy error.
If the State Legislature were serious about reducing the number of medication related errors it would start by adopting laws that impose restrictions on the number of hours a pharmacist can work during any shift. The demands on the chain pharmacies to maximize corporate profits through an assembly line production outfit ultimately leads to more mistakes and patient harm. “In some retail locations, pharmacists are being asked to work 12 hour shifts, sometimes back to back. Pharmacists are asked to handle 30 prescriptions an hour. That’s two minutes to fill a prescription, counsel a patient, and check for potential drug interactions. Pharmacists are under incredible pressure to crank out prescriptions. It’s no wonder mistakes are being made.” Says Phillip Grauss, a senior pharmacist at Kaiser Pernmanente. See Caremark article.
Some states have taken a meaningful approach to reducing the rate of dispensing errors. In North Carolina, for instance, drugstores are now legally responsible when an overworked pharmacist makes a mistake while filling out more than 150 prescriptions per day. If this bill is made into law, then in New Jersey, chain pharmacies would never be held accountable for the negligence of its pharmacist employee, and this is supposed to be in the interest of protecting the consumers of New Jersey. I wonder how it came to be that this bill sailed through the State Assembly without any public outrage. What corporate interests were really behind the crafting of this legislation? Am I the lone voice of outrage here? Elizabeth Allan Flynn et al, National Observational Study of Prescription Dispensing Accuracy and Safety in 50 Pharmacies, 43(2) J.AM. PHARM. ASSOC. 191-200 (2003). Copyright © 2007 by Law Offices of Scott D. Grossman, LLC.
Scott D. Grossman is a New Jersey licensed attorney with a Master’s degree in political science from Rutgers University and a passion for protecting patient and consumer rights.