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Australian Journal of Pharmacy : April 2005
pdl DL has for some time advocated the use of the ‘s’ word—sorry—as a means of recognising a patient’s situation when a dispensing error may have ocurred, without admitting any liability. We recently commissioned an article from Guild Insurance on the topic and, guess what? It appears the law has caught up with the PDL position. The following article was written by Guild Insurance’s legal advisers—Mari- anne Nicolle, principal of Guild Legal offers sound advice—and I commend it to your attention. Can I say sorry? When a patient complains about a dis- pensing error it is important to listen to the patient and record the complaint. Even if unsure whether a dispensing error had in fact occurred, you should allow the patient to air his or her concerns. Then inform the patient that you will investigate the complaint and respond as soon as pos- sible. This will allow some ‘breathing space’ to assess the complaint and obtain professional and legal advice. If it is obvious that a dispensing error has occurred, then in most situations it is appropriate to apologise. There is a dif- ference between an apology and an admission of liability. Historically, there has been a reluctance to offer an apology to a patient on the basis that it may be mis- construed as an admission of guilt and possibly jeopardise the cover provided by a professional indemnity insurer. A recent wave of legal reform in Aus- tralia has helped bring an end to that ten- sion by introducing legislation which essentially provides that an apology is not an admission of liability. Some of the leg- islation goes so far as to define an apology. In Victoria an apology is defined under the Wrongs Act 1958 to be: ‘an expression of sorrow, regret or sympathy but does not include a clear acknowledgement of fault’. pdl risk management news Pharmaceutical Defence Limited chairman John Coppock When to say ‘sorry’ P In NSW an apology is defined under the Civil Liability Act 2002 as: ‘an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connec- tion with any matter whether or not the apology admits or implies an admission of fault in connection with the matter’. This legislation now protects a phar- macist in the event that a patient con- strues an apology as an admission of fault. Further, the effect of an apology should not be underestimated in connection with any possible review of the pharmacist’s conduct by the Pharmacy Board. In this regard, a Pharmacy Board will review not only the facts of the dispensing error but how the pharmacist dealt with the patient after the dispensing error was identified. A practical example Here is a simple example of how an apol- ogy can be used to convey sympathy and, avoid creating an expectation in the patient’s mind that the pharmacist will meet any claim for compensation: The patient, an elderly lady, presents a prescription for Lanoxin PG 62.5mcg but Lanoxin 250mcg tablets are dispensed in error. The patient returns to the pharmacy two days later, complains that she feels tired and dizzy, and wants to know whether this was the result of the dispens- ing error. In this factual situation the dispensing 1 3 5 I 2 4 230 ? THE AUSTRALIAN JOURNAL OF PHARMACY VOL.86 APRIL 2005 error is obvious but the cause of the com- plaint of lethargy and dizziness is not. In this situation it would be appropriate for the pharmacist to use words to the fol- lowing effect: ‘I am sorry to hear that you have been feeling unwell and I will of course review what happened the other day in order to ascertain how you were provided with the incorrect medication. If it is okay with you, I would also like to notify your doc- tor that you may have been taking the wrong medication for the last two days. It is very important that we look after you so let’s get you the correct medication now and I will try and sort this out over the next day or so. Is that okay?’ Here the pharmacist has acknowledged the possibility of the error, shown sympa- thy towards the patient but made no admission of responsibility for any injury that may flow from the dispensing error. Many potential claims can be avoided by the pharmacist resolving the complaint directly with the patient at an early stage. This does not mean that the pharmacist does not notify his or her insurer of the complaint. To the contrary, the insurer should be notified and legal advice obtained as soon as possible. It is obviously prudent from a profes- sional, legal, business and social perspec- tive to deal with a complaint expeditiously and use the ‘s’ word. What to do when a patient complains of a dispensing error t is recommended that you take the following steps when a patient complains of a dispensing error: 1. Discuss the complaint with the patient as described above. 2. Record the patient’s complaint and speak to the relevant staff involved in order to ascertain the facts. 3. Notify the patient’s doctor. 4. Contact PDL in order to obtain professional peer advice and counselling. 5. Notify your professional indemnity insurer of the incident. ¦