Professional Negligence: When Practice Goes Wrong

Curtis E. Harris; Warren Richards; Jack E. Fincham

Disclosures

The Annals of Pharmacotherapy. 2006;40(7):1377-1382. 

In This Article

Abstract and Introduction

Abstract

Objective: To review the practice and legal principles of negligence law.
Case Summary: An illustrative, fictional case is presented, based in part on facts gleaned from actual case law. A respected pharmacist, faced with the financial loss of his business, decided to engage in 2 creative but unethical schemes to increase his profit margin. In doing so, he violated federal Medicare law and placed a number of the patients who used his services at significant risk for medical complications.
Discussion: Negligence law has evolved over the past 30 years in a manner that significantly increases the liability of the practicing pharmacist for both ordinary negligence actions and criminal negligence actions. In addition, the past decade has seen the expansion of Medicare Fraud and Abuse law such that it now represents an increasingly high risk area for every medical service provider, including the pharmacist.
Conclusions: Professional practice in the US is highly regulated, governed by both case law and statutory law. Every practicing pharmacist should be aware of the law that governs his or her behavior to avoid both civil and criminal liability.

Introduction

Negligence is carelessness. Ordinary human behavior is rife with careless actions, most of which cause no harm or do so little harm as to be easily forgiven. We have all received (and dialed) a wrong number phone call and excused the person who dialed it without thinking twice. It is only when the caller dials again that we become upset or when it becomes obvious the intrusion is somehow intentional that we take action to block the call. Ordinarily, as long as a behavior is not harmful or annoying and the person who was careless apologizes, negligent acts are forgiven and forgotten as part of our normal social structure, hardly causing a second thought.

The provision of health care is an error-prone human endeavor.[1,2] As admirable as the oft-stated goal of eliminating all error might be, to avoid all error in health care would necessarily involve eliminating both the patient and the healthcare provider from the encounter. Arguably, health care today is safer than at any time in our history, despite the increased risk of harm associated with increased technology and disease intervention. However, as safety in healthcare practice has increased, so has the public expectation regarding safety, an expectation that is often racing ahead of what is possible to achieve. A bad outcome is first treated as a possible or probable mistake subject to proof otherwise, even in the mind of the professional responsible for the patient in some way.[3,4] Malpractice case law is formed by the tension between acts that are a possible cause of a treatment misadventure and acts that are a probable cause of a treatment misadventure. As it becomes more certain that any given act is the actual cause of an injury, liability for that act increases dramatically.[5]

Ordinary negligence, per se negligence, gross negligence, and criminal negligence are degrees of carelessness divided by the probability of harm and the imputed mindset of the person causing that harm.[6] It is important to note that the most extreme form of malpractice, criminally negligent malpractice, does not involve a premeditated intention to harm another person. Premeditation to harm is an essential element of a criminal act that defines attempted or actual murder--not negligence. Rarely, an ordinary part of the provision of health care can become a charge of homicide (or murder) if a motive toward profit or a desire to harm a patient can be imputed to the healthcare professional, but such a motive must be beyond extreme carelessness. Such acts are unusual in health care, as the following case describes.

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