Prescribing errors might be malpractice but before you sue, make sure you know who’s to blame.
Medication errors—preventable mistakes that cause inappropriate medication use or medication-related harm—are common. Errors can happen at any point in the supply chain, from when medicines are manufactured to when they're being prescribed, when prescriptions are filled, and when the patient takes the medicine. Prescribing errors are estimated to account for almost one-half of all medication errors.
If your doctor made a mistake while prescribing a medication for you, is it medical malpractice? Maybe so, if your doctor was negligent and that negligence caused you some injury. We'll learn more about when a prescribing error might equal a malpractice claim.
Can I Sue My Doctor for Prescribing the Wrong Medication?
If your doctor prescribes the wrong medicine, you might have what the law calls a medical malpractice claim. Malpractice is just a shorthand term for professional negligence. To succeed with a prescribing error malpractice claim, you've got to prove that:
- the prescribing error happened because your doctor was negligent, and
- you were injured by the doctor's negligence.
Common Prescribing Mistakes
There are several common prescribing mistakes. By far, the most frequent error is prescribing the wrong dosage—too much or too little of the medicine. In one study, dosing errors were found in more than one-third of all cases of prescription mistakes. Errors also happen when the doctor prescribes:
- medicine to which the patient is allergic
- the wrong medicine
- medicine likely to have harmful interactions with other medications (prescription or over-the-counter) the patient is taking
- medicine that might cause another medical condition to get worse
- the incorrect frequency or duration to take the medicine, and
- without warning the patient about risks, side effects, and drug interactions (lack of informed consent).
Is a Prescription Error Considered Medical Malpractice?
To answer this question, you need to know whether, in making the prescribing error, the doctor failed to meet the standard of care. More specifically, you need to know whether a reasonably careful doctor with similar training and experience would have made the same prescribing error under similar circumstances. If the answer is yes, then the error might be medical malpractice.
You'll need expert witness testimony from a doctor with similar education, training, and experience to prove that a prescribing error is malpractice. The expert witness must testify that the prescribing error was beneath the standard of care and was negligent.
Proving that your doctor was negligent is only half the battle in a medical malpractice case. You must also prove that the doctor's negligence caused you an injury. For instance, maybe the misprescribed medicine made you sick or made your medical condition worse. Proving that the doctor's error caused you an injury will almost certainly require additional medical testimony, either from an expert witness doctor or from a doctor who's treating you.
Who Else Might Be Responsible for Your Medication Error?
Prescribing errors rarely happen in a vacuum. Other health care professionals—for example, nurses, pharmacists, and other doctors—often see and review prescribing information. Some of those professionals might be in a position to spot prescribing errors. If they recognize an error but fail to bring it to the prescribing doctor's attention or take other action, that might be negligence.
Before you bring a prescribing error malpractice claim or file a malpractice lawsuit, make sure you've identified all health care professionals (or others) who might share any blame for the error. As a general rule, you're required to name all parties and bring all claims in a single lawsuit. If you need help, seek advice from an experienced malpractice attorney.
Should You File a Medical Malpractice Lawsuit Because of a Medication Error?
Unfortunately, there's no simple answer to that question. Often, it's best to approach it methodically, taking a close look at the strengths and weaknesses of your case. Here are some of the factors you should consider:
- whether you can prove the elements of your claim
- the nature and extent of your injuries and damages
- the costs of a medical malpractice lawsuit, and
- the risks of taking a malpractice case to trial.
Proving the Elements of Your Claim
You'll have to prove that the doctor's negligence caused you some injury. If your evidence for any of these three elements—negligence, causation, or injury—is weak or nonexistent, you'll have a hard time winning your case. Assessing the strengths and weaknesses of your evidence is a job for an experienced malpractice lawyer.
Your Injuries and Damages
Injuries are the harms you suffer because of the doctor's malpractice. Damages are the money you receive to compensate you for your injuries. It might be helpful to think of injuries and damages as the engine that drives your malpractice claim. The more severe, permanent, and disabling your injuries, the greater will be your damages. The greater your damages, the higher the value of your case.
If a doctor's prescribing error made you sick for a few days or caused some side effect that disappeared quickly after you stopped taking the drug, your injuries probably aren't substantial enough to justify filing a malpractice suit. Most malpractice attorneys will look for medical expenses and other out-of-pocket losses in the range of $50,000 to $100,000, at a minimum, before they'll think about taking on a difficult malpractice case.
The Costs of Filing a Malpractice Suit
Malpractice suits are among the costliest of all personal injury cases, for a lot of reasons. For starters, doctors don't like being accused of negligence, so they often fight malpractice lawsuits to trial and beyond. In addition, malpractice claims—and especially those that end in an insurance payment—make the doctor's malpractice insurance more expensive.
Taking any case to trial is expensive, but that's especially true for malpractice cases. One of the biggest reasons they're expensive is because of the need for expert witnesses. For every expert who must testify in person at trial, you should expect a bill of $15,000 or more.
The total cost to take a typical malpractice case to trial can exceed $75,000, and often will be more than $100,000. This helps to explain why, as discussed above, experienced malpractice lawyers won't think about taking on a case that doesn't have hefty damages.
The Risks of Taking a Malpractice Case to Trial
In any jury trial, the court will instruct jurors to set aside their biases and to decide the case based on the facts and the law. Jurors try their best to follow this instruction. But the simple truth is that juries tend to look sympathetically at doctors, nurses, and other health care professionals. Even when they make mistakes, jurors sometimes give them the benefit of the doubt.
Experienced malpractice lawyers know and have tried cases in front of local judges and juries. They understand and can advise you about the potential risks and rewards of taking a medical malpractice lawsuit to trial. Even so, many lawyers will tell you, very candidly, that it's difficult to predict what a jury might do in any particular case.
Next Steps
If a doctor prescribed you the wrong medicine, you might have a medical malpractice claim. Don't try to go it alone. Prescribing error malpractice cases tend to be factually and legally complex. You'll want experienced help in your corner.
The doctor and insurance company will have lawyers on their side. You should, too. Here's how to find a malpractice attorney who's right for you and your case.
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