Throughout the country, prescription misfills injure and sometimes kill hundreds of people, every year. As pharmacies become busier, the likelihood of pharmacy error increases. In 1998, Georgia took action to combat this problem. The Georgia Legislature strengthened laws and regulations regarding pharmacy conduct. Nevertheless, many people throughout Georgia continue to receive the wrong medication due to pharmacy error. Once you or a loved one has become a victim of pharmacy error, the question becomes: how do I maximize my recovery for the injuries I have suffered? The answer is not as simple as you may think.
In Georgia, each pharmacist has an obligation to ensure that every prescription given to you is accurate. That means that the pharmacist must review the prescription (with a few minor exceptions). The pharmacist is also responsible for all decisions regarding your prescription that require “professional judgment.” For example, if you were to ask about a recent change in the color of your medication or about how your medication may interact with a current medication you are taking, the pharmacist–not the technical assistant–is responsible for answering these questions.
Furthermore, many physicians write your prescription in what seems like another language. Regardless, the fact that a prescription seems illegible is not an excuse for giving the wrong medication. By law, the pharmacist must call the prescribing physician to verify what your prescription is!
But merely receiving the wrong medication will not solely determine your recovery. You must be injured, and your injury must be provable, because the extent of your injury (for example medical bills, rehabilitation, and loss wages) will play a signiifcant role in your recovery process. Unfortunately, your recovery will also depend on another important factor: Were you at fault? And if so, to what degree was your fault?
Our experience has demonstrated that maximizing a victims recovery in prescription-error cases inevitably involves what Georgia law refers to as comparative fault–the extent of your fault in taking the wrong medication. For example, a few questions in the minds of insurance adjusters and probably jurors may be: how long have you been taking the medication you were supposed to receive? If you have been taking a particular medication for, say, 5 years, and your medication is a small red pill, then, when the pharmacist made an error by giving you a big orange pill: why did you take it? Didn’t the color warn you of a potential problem? That sounds unfair and it is; you did not make the mistake. But the harsh reality is that Georgia law permits insurance companies and juries to take into consideration the extent of your so-called “fault,” when deciding what compensation will be given to you for your injuries.
Lastly, in order to maximize your recovery, you need a lawyer who understands punitive damages, which is an amount of money given to you, as a way of punishing the wrong doer (in this case, the pharmacy) to deter future, similiar conduct. Punitive damages are not easy to recover. In fact, to recover punitive damages in Georgia, proving mere negligence or even gross negligence is not enough. That means that merely giving you the wrong medication will not help maximize your recovery, at trial or during negotiations. In the context of pharmacy error, your lawyer will most likely have to prove a complete “want of care” on the part of the pharmacy. This is tough. But a lawyer with pharmacy-error experience and strong legal skills definitely increases your chances of maximizing your recovery. Ultimately, everything will depend on an in-depth understanding of how the facts and evidence of your case apply to Georgia law.
Contact the Oinonen Law Group. We know how to handle pharmacy error in a manner that will maximize your potential recovery. We will give you an initial consultation.