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Professional liability seems a distant concept until you are served with a petition naming you and/or your pharmacy as a defendant in a professional liability case. Suddenly, that far-off concept hits home like a “big blow to the mid section.” These kinds of unplanned, misunderstood and sometimes devastating events happen to the best of professionals. The professional that does not want the sudden “surprise” needs to follow some simple guidelines. Some initial suggestions are:

1. When you are served with a petition naming you as a defendant in a pharmacy malpractice case, immediately notify your carrier. Do not make the serious mistake of believing that this is going to “go away.” It will not. It will only get worse and the insurance companies are entitled to immediate notice so that they can prepare to protect you under the terms of your policy;

2. Be sure that the insurance company chooses an attorney to represent you that has notable experience in this area. Some policies allow you to have input into the selection of your attorney, and you should take full advantage of that. That requires that you know and have contacted an individual who is competent, knowledgeable and available;

3. Immediately gather all documentation you think may be relevant so you can be ready when you are contacted by your defense counsel; and

4. Do not make any statements about the litigation to anyone until you have had an opportunity to review what is being alleged against you with your attorney.

These are just a few of the initial reactions that will both benefit you and will assist those who will be later trying to help you present your “best foot forward” at the appropriate time and place.  Fear and anger are normal reactions to this kind of a professional “assault.”  Both of these normal reactions need to be put aside as quickly as possible so that a clear understanding of what you face and a determination to face it with competent help are not compromised by either of these understandable and initial reactions.  What has happened is you have been seriously challenged, and you must be clearheaded and thoughtful to assist yourself and those provided to you for your defense.

A Brief "Anatomy" of a Pharmacy Professsional Liability Case

Individuals who sue healthcare providers such as pharmacists face a daunting task before there is any judgment through which they can collect any funds.  This is both true and comforting to those who find themselves in the midst of professional liability litigation.  A Plaintiff (the individual suing you) must prove all of the following:

1. That a duty was owed from the healthcare professional to the Plaintiff.  This concept of “duty” means that because of the relationship between the Plaintiff and the healthcare professional, an obligation that arises by virtue of that relationship (duty) was one that permits this kind of litigation to be initiated at all;

2. Violation of that duty (negligence).  In a phrase, the law places the burden on the Plaintiff to prove that the healthcare professional did something or failed to do something that a reasonably prudent pharmacist would do or would not have done.  This is a heavy legal burden for the Plaintiff.  It requires proof that the healthcare professional negligently violated the duty owed to the patient and/or customer in such a way that the standard of care that is ordinarily required of a professional healthcare provider was not maintained;

3. The Plaintiff must prove that the negligence of the healthcare provider was the “proximate cause” of the injury alleged to have occurred.  This is the “causation” element in the lawsuit, and is again a heavy burden that is ordinarily proven only by professional experts in the field.  These experts are expensive both for the Plaintiff and the Defendant, and many times, professional liability cases against healthcare providers are won or lost based upon the competence and comments of these forensic experts;

4. There must be damages that reasonably flow from any negligent activity found to have existed.  It is important to understand that a judge and/or jury determines the amount of money that the Plaintiff will receive in order to be compensated for negligence, if any, found to have existed.  It is this issue that a fact finder, such as a jury, must weigh based upon the evidence presented at the trial.  These damage awards are made by a jury, but are influenced by any number of strategic and formidable activities occurring during the trial.  Competent attorneys give great emphasis on this issue as they attempt to assist and guide a jury toward its appropriate determination.

Thus, you can see that the elements above mentioned and briefly described are important in any professional liability case, and more important for the Defendant healthcare provider, the Plaintiff must get an answer to each of those issues in their favor before any judgment can be legally entered.  Thus, all of those issues must be found in the Plaintiff’s favor.

This fact alone, while not having the effect of total comfort, should in fact outline the rather formidable task facing any Plaintiff desiring to have a healthcare provider found negligent in their professional duties.  These kinds of lawsuits, unlike many other lawsuits, must be based on appropriate professional testimony involving the issue of negligence and the violation of the standard of care required of a pharmacist under the same or similar circumstances.

Your insurance company, its claims department, and the attorney selected by the company (and hopefully with the approval and/or input of the healthcare professional insured) are a team that is available in these kinds of serious litigation challenges.  It is always best to be sure that the company providing the coverage necessary to protect you in these kinds of professional liability challenges has attorneys that are knowledgeable in the area of pharmacy professional liability.