Medication errors are all too common. The Food & Drug Administration (FDA) gets more than 100,00 reports every year of suspected mistakes in prescription medication. Further studies from the Patient Safety Network indicate that medication administration error rates range from 8 percent to 25 percent. If the medication is given intravenously, those rates rise to 48-53 percent.
It’s not hard to understand why. According to the National Center for Biotechnology, there are nearly 7,000 prescription medications to choose from. These options bring tremendous benefits, but it also makes receiving the wrong medication more likely. And the costs of those errors are upwards of $40 billion annually.
Liability in these cases can fall to the doctor who prescribed, the nurse who administered, or even the pharmacy that distributed. To discover if your own suffering from common medication errors gives you grounds for legal action, it’s important to know your rights and the most common ways those rights are violated.
Patient Rights in Medication Administration
To understand whether there is liability in a particular case, it’s helpful to consider the widely accepted patient rights that come with receiving any medication.
The most basic right of all is the right to be properly identified. That is, if you are receiving medication in the hospital, the medical staff must know who you are and that the medication you’re getting is meant for you.
The right itself is basic, but implementing it can be harder than one might think. Let’s say a nurse is dealing with a heavy patient load and when they come into your room, you’ve fallen asleep. Now an identity check ideally encompasses both looking at your wristband and asking you to confirm verbally. Do they rush through and only do one check? Or worse, none at all, simply assuming they know who they’re treating? Depending on the answers to these questions, this might be negligence and could give you the basis for a lawsuit.
A natural byproduct of being correctly identified is getting the right medicine itself, and in the right dose. As a patient, you also have the right to be given your prescription via the right route, be that oral or through IV. You also have the right to have it given to you at the correct time. For example, if you’re supposed to get your pain relief treatment every six hours, it is the hospital’s responsibility to meet that standard.
Informed consent is a cornerstone of medical ethics. That means, as a patient, you have the right to be properly instructed on what the medication is for and to get information about its potential side effects. A part of getting that information includes the right to refuse the medication if you desire, or to have your acceptance documented with a signature.
Finally, you have the right to be properly assessed and evaluated before, during, and after the administration of the medication. This doesn’t mean medical professionals can never make human mistakes in their judgements. It doesn’t mean the medicine is guaranteed to work. It simply means that a standard duty of care–something that could be attested to by expert witnesses in any legal proceeding–must be present in your treatment.
Common Medication Errors
If doctors or staff make a mistake in the medication, it most likely will come under one of these categories:
- The Wrong Dose: When it comes to mistakes that are “easy” to make, giving you the right medication, but in the wrong dosage, is certainly one of the easiest. But easy mistakes can have terrible consequences for you. Medicine that can be life-saving in the right dose, can become toxic in an overdose. Or an under dose might be ineffective, allow your condition to linger and create more problems down the road.
- The Wrong Drug: Suffice it to say, receiving the wrong drug would most likely be inappropriate treatment for your condition and can have disastrous results.
- The Wrong Route: Does it make a difference if your medicine is to come orally or through IV? It might. Depending on the circumstances, the wrong route can result in you getting sicker and may even lead to death.
- The Wrong Time: Prescriptions often have to be taken at specific times or in specific intervals. If these guidelines are not followed in the hospital, it’s a medication error. Or if you are not properly informed with take-home medicine, it’s an error that someone might be liable for.
- The Wrong Assessment: Someone might be liable for a wrong assessment if they did not consider all relevant medical information before providing you with medication. An example would be receiving a prescription that would seem to solve the medical problem, but instead triggers a known allergic reaction. A duty of care requires your doctor to be aware of these relevant medical factors.
How To Prove a Medication Error
A lawsuit for a medication error requires proving that someone in the chain of custody–be it the doctor, the nurse, the facility itself or the pharmacy–was negligent. Negligence in the legal sense does not require that any of the above be free of error. It does require that their actions be consistent with what the medical community considers an acceptable standard of care.
Expert witnesses are necessary in a medical malpractice case. Perhaps the basis of your case is that you were wrongly assessed, and the doctor did not give adequate consideration to an allergic reaction you might have. In a legal venue, the doctor might challenge that they did in fact consider your allergy and were convinced that the risk was low. The fact you had an adverse reaction is not automatically the fault of the doctor.
Your might choose to bring in an expert witness–typically someone who is a doctor themselves and familiar with best practices in New York City–to testify that the typical doctor would not have ignored the potential for an allergic reaction.
To continue with this example, let’s say your doctor claims they informed you the medication could have negative side effects, but it offered a higher chance of recovery. Essentially, they told you it was a high-risk/high-reward treatment. If that’s true and you took the risk, it will be much tougher to hold the doctor liable. But what if they did not inform you of the risks–or did so in a way that downplayed the risk at the expense of the reward, that could be a different story. Having an advocate with you when medication is explained is helpful for several reasons, and one of them is having an eyewitness account for circumstances like these.
Once you establish the standard of care was violated, the next step to win a medication administration lawsuit is to show that the violation caused you damage. In medical cases, this is typically well-documented. You must further establish that the violation was the direct cause of that damage–i.e., that there were no other conditions that might have caused your side effects.
If all of this is established, under the guidance of your attorney and the help of expert witnesses, a judge should determine that you are in a position to receive financial damages. The amount of the damages will be determined by the costs of the additional care required, the cost of any lost employment time, and the intangible losses that come from loss of time with family and friends, along with mental anguish. Adequately communicating these losses is crucial to helping the court assign a monetary value to something that cannot truly be measured.
Proving medication error is a tedious process that involves sifting through hospital documents and networking with the right expert witnesses. It involves having the experience of similar cases to draw knowledge from. Attorney David Kates has been fighting medical malpractice lawsuits for over twenty years. He has fought hard for his clients, and he continues to bring home settlements that can bring financial peace of mind to people who are physically hurting. Let him work to help you. Call today at (718) 866-3664 or contact our office online.