Pharmacists must adhere to prescription errors

Pharmacists and doctors are liable for medical prescription errors

08/29/2013

Even pharmacists are liable for prescription errors of doctors. According to a recent judgment of the Higher Regional Court (OLG) in Cologne, pharmacists who are in „roughly wrong way a wrong drug to a patient“ to prove that they are required to pay for possible health damage, „that the damage is not due to the mistreatment.“ This reverse burden of proof has long been for gross treatment errors of doctors.

With the OLG Cologne lies the special responsibility for medical liability procedures and with the current verdict the judges decided on one of the as yet unresolved liability questions. Previously, it was unclear whether even pharmacists are liable if they hand over incorrectly prescribed medication by the doctor wrong medication. Now, the Cologne Higher Regional Court in its current ruling (file reference: 5 U 92/12) made clear that the pharmacists are also in the burden of proof in such a grossly incorrect drug delivery to refute possible health damage to patients.

Wrong drug caused cardiac arrest
In the trial, which was based on the landmark ruling of the Higher Regional Court, the judges had to decide on the case of a child that was born in June 2006 with a Down syndrome (free trisomy 21) and a heart defect. The boy was scheduled to undergo heart surgery in September 2006 and treatment with a digitally-based cardiac-enhancing drug by then. „Due to an oversight, the doctor presented the prescription in an 8-fold overdose“, reported the OLG Cologne in a recent press release on the verdict. After taking the overdosed remedy for a few days, the boy suffered a cardiac arrest and had to be resuscitated for over 50 minutes. In addition, the child's intestine was damaged. The parents then sued both the doctor and the pharmacist for damages and payment of at least 200,000 euros in damages.

Pharmacist should have recognized prescription errors
The Cologne Higher Regional Court found that five years after the wrong treatment, the boy had suffered brain damage in the form of a considerable developmental delay. At the age of five, the applicant was not yet able to speak, walk or self-serve, according to the court's communication. However, so far remained unclear, „whether the developmental delay due to the false medication and the lack of oxygen after cardiac arrest or the congenital genetic defect“ is, so the message of the court. However, in this case the judges do not see the burden of proof on the claimant, but rather the doctor and the pharmacist must prove that the damage was not due to the overdose. In the opinion of the Higher Regional Court, they did not succeed. The pharmacist must also answer, because he would have to recognize the overdose in view of the age of the patient. With his verdict, the OLG confirmed the previous conviction of the defendant basically and left only the amount of the sorrow of pain still open, so the official communication.

Burden of proof in case of gross errors of doctors and pharmacists vice versa
The reversal of the burden of proof was previously only for grossly incorrect treatments of doctors, but was now transferred from the Higher Regional Court to pharmacists. For physicians, it has long been considered that the burden of proof lies in a simple medical error on the part of the patient, that is, he has to prove that the damage is due to a faulty treatment. „In the case of a gross treatment error, however, it is assumed that the damage is causally attributable to the error“, so the message of the OLG Cologne. Since February of this year, this has also been expressly regulated by law in the Patient Rights Act (§ 630h para. 5 BGB). According to the current verdict, these principles will in future also be transferred to the liability of pharmacists. In the current case, a gross error of the pharmacist had existed, because he would have taken care of the delivery of such a highly dangerous drug in a very special way and must recognize the error in the recipe, so the assessment of the court. „ The application of the principles of gross maladministration to comparably serious errors by pharmacists is necessary because the material and interests situation is the same“ is, reports the OLG. With such a faulty administration of drugs, the interaction between doctor, pharmacist and drug can not be meaningfully separated. Due to the scope of the decision in principle, the Higher Regional Court of Cologne has allowed appeal to the Federal Court of Justice. (Fp)

Picture: Martin Berk