Professional liability in the future

Don McGuire, R.Ph., J.D.

The practice of pharmacy has changed rapidly in the last few years and many more changes are predicted for the future.  Pharmacy practice now includes drug administration (including immunizations), prescribing by protocol, patient counseling and education, and prescribing of a legally-recognized pharmacist-class of drugs.  Practices that are becoming commonplace were unheard of as little as twenty years ago.  One of the most common questions from pharmacists is whether these new practice modes expose them to increased risk of liability.  The simple answer is yes.  However, the profession cannot grow and change without an accompanying change in risk exposure. 

To understand the increased risk exposures of these new practice types, and how to manage those exposures, it would be useful to review the necessary elements that must be proven in order to be held liable for negligence.  A plaintiff must prove that a duty to the plaintiff existed; there was a breach of that duty; this breach was the proximate cause of some harm; and that there was actual harm suffered.  When we talk about the new modes of pharmacy practice, we are essentially adding new duties to our practices.  To determine when a pharmacist has breached his or her duty to a patient, the pharmacist’s conduct is compared to the standards of the profession.  Selection of good risk management techniques that help ensure conformity to these standards minimize the chance that a breach will occur.     

A good risk management program is essential to any pharmacy practice.  The risk management process consists of five steps:

1.   Identify steps in your processes where errors may occur.

2.   Analyze those steps for possible prevention or control techniques.

3.   Select the technique or techniques which best fit(s) your needs.

4.   Implement the technique.

5.   Monitor the results and make any necessary changes.

The most valuable technique for these new practices is a competent, well-trained pharmacist.  Another important risk management technique is insurance.  It is important to know that you are covered for claims resulting from these new practice modes prior to actually having a claim.  Review your Professional Liability Policy for the definition of pharmacy services and for any exclusions.  A definition of professional pharmacy services that is tied to an outdated model of product dispensing may not adequately insure against these new risks.  Pharmacists Mutual’s definition of pharmacy services includes these new modes of pharmacy practice (where they are permitted by state or federal law).  Pharmacists Mutual also monitors the changing nature of pharmacy practice so that our policy can change as the pharmacy profession changes. 

Change is the one constant in the modern world.  With proper preparation, you can minimize your risks while positioning yourself to take advantage of these changes. 

This article was provided by Pharmacist Mutual Insurance Companies (PhMIC). A Partner organization with the Utah Pharmacy Association.