Community pharmacists fear being caught between compliance with the Omnibus Budget Reconciliation Act of 1990 and the rising litigation over improper counseling, Drug Utilization Review screening and patient confidentiality.
A case that hits closest to home for supermarket pharmacists is the one involving a Smith's Food & Drug Center in Las Vegas, operated under the chain's Southwest division. In that case, which was reviewed by the state Board of Pharmacy this summer, both Smith's and its pharmacist were cited for a host of penalties and given stiff fines based in part on insufficient counseling.
"This is part of a trend to test new laws and see how they are interpreted, and how to push compliance of OBRA '90 regulations," said Marilyn Fowler, principal in Fowler Associates, a firm in San Ramon, Calif., that specializes in developing training programs.
Fowler has developed a two-part training program, "A Matter of Law," sponsored by Bayer Corp.'s Pharmaceutical division, West Haven, Conn., to help pharmacists minimize the risk of liability that could harm their practice and damage their professional reputations. The program was first introduced at the National Association of Chain Drug Stores' Pharmacy Conference in August. In researching the project, Fowler cited the following statistics that demonstrate the direction that future pharmacy malpractice cases are headed.
Last year a report titled: "Study of Liability Claims Against Pharmacists from 1989 to 1993," conducted by the Pharmacist Mutual Insurance Co., indicated that liability is moving from cases involving misfilled prescriptions to those involving counseling, reviews and judgments.
The study looked at all liability claims processed and broke them down into two classifications -- mechanical errors and intellectual errors. It was found that 50% of all intellectual error claims involved improper counseling. The study also indicated dramatic increases in other types of intellectual error claims. Prior to 1990, it was unheard of that claims for breaking patient confidentiality and DUR screening were filed. However, by 1993 patient confidentiality accounted for 3% and DUR accounted for 5% of all claims filed, the study reported.
Fowler also pointed out that in the last 15-year period (1980 to 1995), there have been more malpractice claims filed against U.S. pharmacists than in the entire history of community pharmacy.
In addition to the dramatic rise in liability claims, the size of damage awards is now exceeding $1 million, said Fowler.
In 1993, the same year the Omnibus Budget Reconciliation Act of 1990 became law, the American Trial Lawyers Association formed a group, Pharmacy Liability Litigation, for the sole purpose of pursuing standard litigation against pharmacists, Fowler pointed out.
"This whole issue of the law and how it will be interpreted is making a lot of pharmacists very nervous because they aren't sure what the law means to them specifically," said Fowler. For more information about the free program, contact: Eric Anderson, pharmacy affairs manager at Bayer, (203) 498-6797, or Laura Cranston, vice president of pharmacy affairs at NACDS, (703) 549-3001.