Medication errors in the United States are common, with around 100,000 reports of suspected medication errors, according to the US Food and Drug Administration (FDA).

The FDA reports the errors based on reports from drug companies, healthcare professionals and consumers, which come via MedWatch, the FDA’s safety information and adverse event reporting program.

A medication error is defined as “any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the healthcare professional, patient, or consumer,” according to the National Coordinating Council for Medication Error Reporting and Prevention.

The injuries will generally result from cases where the patient has been prescribed too much medication, the wrong medication, or not enough medication.

The trouble is knowing who you should sue when you file a lawsuit for this particular type of medical malpractice.

In certain situations, medication errors can be the doctor’s fault. In other cases, they may be the fault of a pharmacist, and in still other cases, they may be the fault of a hospital or nursing facility.  Medication errors may result from an incorrect diagnosis, drug distribution problems, or even problems with a device used to administer medication.

LawFuel asked law firm Ogg, Murphy & Perkosky, P.C., to identify the key issues facing those who have experienced (or believe they may experience) a medication error. 

What are the key things they need to look out for?

1.The Existence of a Doctor-Patient Relationship

To sue a doctor for malpractice there must be a doctor-patient relationship.  This clearly excludes the situation where there might be some casual advice or something overheard rather than where the doctor is retained to provide medical advice.

The typical confusion that may occur is where a consulting doctor or physician is involved, but where he or she does not directly treat the patient.

2. How To know if there has been a medication error?

If you or a loved one is in a nursing facility or hospital, and the nurse forgets to give you your medication or gives you the wrong medication, then the chances of a medication error are high.  There are certainly grey areas, such as when medication does not appear to be working, but it is important to check what is being prescribed and how it may interact with any other medications you are on.

Medication abbreviations are common and also, regrettably, can be commonly misspelt or prescribed in error.  The results can be serious and the pharmacist fulfilling the prescription should be able to describe what you are being given and what it is for.

The failure to provide proper instructions or to put an incorrect prescription together could well result in a malpractice lawsuit.  Similarly, a doctor providing an incorrect dosage or over-prescribing a medicine may also be liable

The recent controversy over Oxycodone is an example of where there has been liability.  Doctors were prescribing this very powerful pain medication for long-term conditions. Many people became addicted to the drug and died from it. 

People who could not get Oxycodone after they were already addicted to it often turned to heroin. Purdue Pharma was successfully sued in a lawsuit by people addicted to the substance.

Different states have different liability laws.  For instance, in Pennsylvania, there are strict tort reform laws and if you want to sue for medical malpractice you will need to be aware of exactly what the legal liability issues are and what the laws dictate. 

 A person suing for medical malpractice in Pennsylvania must be examined by a doctor who must fill out a certificate of merit form stating that a medication error might have caused the injuries you are suffering.

It is also important to know about the issue of ‘informed consent’, which applies when the doctor or medical professional should advise the patient on the risks of any treatment or surgery.

3. Establishing Negligence

There needs to be negligence established in either the treatment or the diagnosis of the problem.  This will generally be based on the rule that the harm was caused in a manner that a competent doctor would not have done in similar circumstances.

The rule generally (see more below on tort issues) will be to consider what is ‘reasonably skillful and careful’ in what the doctor has done, which is the essence of a medical malpractice claim.

Medical evidence will be needed in any jurisdiction to demonstrate that the appropriate skill and care was not undertaken or exhibited.  One of the issues that can occur here is evidence relating to the underlying injury or illness and what the actual cause of the injury was.

4. What You Should Know About Tort Reform

You can only file a medical malpractice lawsuit in the county where the incident occurred. This can be a problem if you don’t know exactly who you should sue.

In any medical malpractice case, a person will have to establish that they suffered injuries because of these medication errors. Hence, it is important to assemble the necessary evidence like medical bills that directly resulted from the medication errors.

You may also have to establish any money you lost because you had to take time off of work. Your employer must write you a letter stating that you missed work due to your injuries.

The money you can get for pain and suffering or punitive damages in Pennsylvania is limited. You are unlikely to be granted your trial in the state because juries tend to be more generous with the amount of money they will award to an injured person.

5. Don’t Delay With Your Claim

Generally you will need to bring any claim for medical malpractice or medication errors promptly, usually between six months and two years depending upon the statute of limitations applying to the lawsuit.  It is vital that the time limits are observed in order to avoid having the claim struck out by the court.

Part of this is to know when the actual negligence occurred or when the patient should reasonably have discovered the injury or issue that is the subject of the medical malpractice claim.

Review Panels

Keep in mind also that review panels will often be set up to review the evidence and decided whether or not there has been medical malpractice or medication errors.  This is not the lawsuit itself, but the preliminary step necessary to establish the basis upon which a patient can bring a lawsuit at all.