Issue: May 2013
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Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

Introduction

Liability of Physicians When Prescribing and Administering Drugs

More than $259 billion was spent on prescription drugs in 2010. Projections indicate that this amount will double over the next decade. When the Affordable Care Act is fully phased in, drug spending growth is likely to grow more than 6% a year in the years 2015 through 2021.

 

Potential liability for negligence or malpractice in prescribing or administering drugs presents a risk for physicians in all practice areas and, as the use of pharmaceuticals continues to rise, so also will the risk of lawsuits related to their use.

 

Attorneys, physicians, insurers, employers, and others who may be affected should be aware of the damages in litigation involving the negligence or malpractice of a physician prescribing or administering drugs. It is critical to know the strategies and techniques to employ and understand the issues involved.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed to demonstrate medical malpractice in litigation involving prescribed medications? And, what is a potential strategy for the attorney to employ?

Physicians:

How can a physician avoid liability for medical malpractice for prescribing or administering drugs or medications? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy for a claim of malpractice or negligence in prescribing drugs be avoided by proof that the physician was not negligent or there was no coverage for the physician’s acts? And, what is a potential strategy for the insurer to employ?

Employers:

Can an employer be subject to liability for an injury to an employee caused by a physician’s malpractice in prescribing or administering drugs or medications? And, what is a potential strategy for the employer to use?


Practice the Technique: Checklists

Attorneys:

Counsel must develop a list of facts and circumstances, specific to the client’s fact situation, which demonstrates proof of injury caused by negligence in prescribing or administering drugs or medications.

Physicians:

The other parties to the litigation will scrutinize the treating physician, medical experts, diagnosis, and treatment provided. The physician must consider this checklist when presenting a defense to a negligence or malpractice action.

Insurers:

When investigating a claim of injury caused by malpractice in prescribing drugs, the insurer should carefully evaluate the actions of the health provider and others. The insurer should look for the following “red flags” and consider how they impact the insurance coverage and the liability for payouts.

Employers:

Employers and their risk managers are concerned with preventing absenteeism and the ability of their employees to work effectively. Not all injuries are work related, however. This checklist should be considered when determining if the employee's injury from a prescription drug is "work related."

Expert Analysis

How Should Physicians Monitor Patients and Keep Appropriate Documentation?

Michael A. Moroney, J.D.

What Are the Pressures on Physicians To Settle When Patients Sue for Malpractice or Negligence in Prescribing Drugs?

Catherine J. Flynn, J.D.

What Steps Should Healthcare Professionals Take to Reduce the Risk Associated with Compounded Sterile Products?

Shannon John Johnson, Pharm. D.

What Are the Guidelines for Safe Use of Opioid Painkillers in Hospital Emergency Departments?

Stuart Kessler, M.D.

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial.


Reasons to Go to Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in malpractice actions involving the prescription of drugs and medications?



Medical Examples

Prescribing Drugs and Medications: Potential for Malpractice

This section provides detailed medical information on the prescribing of drugs and medications including how drugs work in the human body, the selection of the proper drug for the patient’s circumstances, the selection of the route and form of drug administration, the need for monitoring of patient drug use, the effects of drugs on specific patient groups, and generally, the types of prescription drugs.



Law and Medicine Resources

Law and Medicine Resources

Included is a listing of law and medical references for further information on medical malpractice for the prescription of drugs.


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Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

Table of Contents
Introduction

Expert Analysis
   Michael A. Moroney, J.D.
   Catherine J. Flynn, J.D.
   Shannon John Johnson, Pharm. D.
   Stuart Kessler, M.D.

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Prescribing Drugs and Medications: Potential for Malpractice

Law and Medicine Resources