Wednesday, August 19, 2009

Ohio Pharmacist Going To Jail Over Botched Prescription

Recently, Ohio pharmacist Eric Cropp was sentenced to jail over the gross mishandling of a chemotherapy prescription that tragically took the life of a two year old child. You can read about it here.

Apparently a pharmacy technician mislabeled saline solution as a chemotherapy solution and the pharmacist had ample opportunity to catch the error and didn't. He was charged with involuntary manslaughter and pled no contest. The tragic death of Emily Jerry led to the passage of Emily's law, which now mandates strict qualifications for pharmacy techs.

But I must admit to having reservations and mixed feelings about criminalizing the pharmacist's conduct in this case. Was he grossly negligent? If this article is accurate, yes. Should a malpractice lawsuit be brought against him? A no brainer. Was his conduct egregious enough to warrant imposing punitive damages against him personally in a civil malpractice lawsuit (damages specifically designed to punish wrongdoers for conduct that is more than just negligent)? Again, yes. Should he lose his license? Yes, in this case--in fact, he did.

In fairness, there is a difference between incompetently handling a prescription and transforming an act of gross malpractice/negligence into a criminal involuntary manslaughter charge. Criminally prosecuting and sentencing a medical professional is essentially unheard of as a result of a preventable medical mistake--in fact, as far as I know, this has never happened before in Ohio. And doctors hardly EVER lose their license when they commit malpractice, as I have written about here. Ohio malpractice laws allow for suing him and even imposing punitive damages against him, and are considered the only remedy for a deceased person's family.

I'm not sure what purpose charging him criminally and sentencing him to prison will serve at this point. This is a tough call for me since I have represented many families harmed by medical and pharmaceutical errors. Their lives are never the same. And we personal injurty attorneys are often portrayed (wrongly) as unfairly targeting and having no sympathy for the medical profession.

Criminally charging a medical professional in a case like this is a rare situation and is unlikely to ever occur again. Unfortunately, preventable medical errors like this one are NOT rare. As The North Carolina Board Of Pharmacy recently noted:
Communication failures between technicians
and pharmacists, IV compounder-related failures, inadequate
documentation of the exact products and amounts of additives,
and other system issues have contributed to numerous
fatal errors.

My gut reaction, however, is that it just seems to be too harsh of a penalty in this case. Perhaps I would feel differently if it were my child. It's a tragedy any way you look at it. My sympathy goes out to all involved. Hopefully some good will come of it, and the recent law changes will make us all safer. But at a minimum, it proves once again that our medical system is still frequently riddled with preventable medical mistakes. Remember that when you hear all the rhetoric about our "runaway litigation climate" and the clarion calls for "medical malpractice reform" in the current health care "debate" (and I use that term loosely after seeing how embarrasingly ugly and rude and uncivil we as a nation have become recently).


Chris said...

I think you raise a good point. The prosecutor said they could charge Cropp because the drug was mislabeled (a misdemeanor that opened the door for broader charges). And since there's no mechanism for reporting pharmacy errors we'll never know how this one ranks. But I wonder how many similar errors have occurred and what the punishments have been?

Brian said...

As far as I know, this is the only criminal prosecution I'm aware of or have ever heard of. I think it's unprecedented and unlikely to ever happen again. I just can't imagine this ever happening if it were a doctor involved. There have been quite a few civil cases involving physicians who even fraudently altered medical records after an event that raised suspicions of malpractice, and there have been no criminal prosecutions over it, and altering records to cover up malpractice is something I find very egregious. I'm not saying a criminal charge would even be warranted, but by analogy it has never occurred to my knowledge.
Thanks for posting.

Anonymous said...

I think that this is the appropriate outcome of a malpractice case. What is the point of giving me money when my family member is injured or dead? It won't bring them back. I want the doctor jailed for a long period of time.
Money doesn't fix anything. It they had to worry about going to jail then they would be more careful.

Brian said...

Thanks for your comment. I must respectfully disagree with your position for 2 reasons. First, in the event a family member is injured, any money would go, primarily (if not 100%) to that family member. Many who are really injured have future care needs. I've seen money do a whole lot of good for those folks--home health aides, adaptive vehicles and homes, and the ability to purchase expensive medications not covered by a health plan or Medicare.

Second, your argument that "money won't bring the dead back is a common one, but collapses of its own weight upon further review. Example: criminal case. Elderly relative is brutalized and murdered. At the criminal's sentencing ,the judge declares: "Sentencing the defendant to prison won't bring her back, so I'm going to let him go."

There would be obvious outrage and rightly so. We can't bring the victims back so the only means of justice is to incarcerate the perpetrator. In the civil context (a lawsuit for compensation), a money verdict will also not bring the deceased back. But in civil cases we can't throw people in jail for making a negligent mistake. The intent to injure element is lacking. If a doctor or other health professional commits malpractice, there needs to be consequences, but it doesn't mean the doc is a bad person, acted with bad intent, or is incompetent. It simply means he/she was negligent and the only measure of accountability is compensating the victim--and sending a message that will speak loud enough to the local medical community, which might result in more careful medical practices.

So why do we accept the idea of imprisoning the criminal even though it won't bring the victim back, but reject the notion that compensating the victim's family is proper because "it won't bring her back?" There is a real disconnect there in my opinion.

Anonymous said...

What I am saying is that the civil system is not the correct system for punishing doctors who commit malpractice. They need to be held criminally responsible for their actions. Do you think that the average doctor cares about his insurance paying out a settlement? This is no kind of punishment.

You said "At the criminal's sentencing ,the judge declares: "Sentencing the defendant to prison won't bring her back, so I'm going to let him go." yet you are willing to allow the doctor go to work the following day committing even worse acts of malpractice.

Put them in jail and strip them of their assets. Then they'll pay attention. 100,000 people die from egregious acts of malpractice each year.
This means that 100,000 doctors and nurses need to be jailed. Money solves nothing.

Anonymous said...

your numbers are way off.

i heard from my attorney that legal sources are estimating that over 10 million deaths each year in the united states are the sole result of malpractice.
he says that in his estimation every death in a hospital is the result of some type of error and can be litigated.

every single death!!!!!!!!!
and i agree with the money part of your argument. when i get the money from my lawsuit i'm going to get a new camper and that will make me feel lots better.

Brian said...

The leading study on this puts the figure at up to 100,000 hospital deaths per year. I have never seen the figure at 10 million in ANY study or article. I'd love to see any data putting malpractice deaths at 10 million per year...

And I strongly disagree that every hospital death is the result of malpractice.

I've been handling malpractice cases for over 20 years now and have rejected scores of potential claims, one reason being that no malpractice occurred (there are/were other reasons as well). A bad result does not necessarily mean that malpractice occurred. It CAN mean that, but each case is unique and needs to be evaluated on its own individual merits.

Thanks for contributing to the debate.