Legal Q & A: Who's liable for technician mistakes?

Q. Are you liable for technician mistakes?

Under the legal doctrine of Respondeat Superior-Latin for "Let the master answer"-an employer is responsible for the negligent acts of employees committed within the scope of their employment.

A pharmacist may also be liable for the actions of a technician under the doctrine of Negligence Per Se. This legal doctrine provides that when a statute or regulation is violated, a plaintiff has only to prove causation and damages in order to prevail, rather than also proving a pharmacist violated the standard of care. It is designed to protect the public under specific circumstances by prescribing certain laws or regulations that are deemed by the legislature to be important enough to protect the public against some type of harm. Some state pharmacy regulations, for example, specifically state that a pharmacist is responsible for the actions of a technician; thus, the actual facts of the situation will be irrelevant.

The legal doctrine of Contribution allows an employer to proceed against the employee to collect a portion of any judgment it is required to pay due to the employee's actions. If a technician error results in an overdose and harm to the patient, or fills an Rx with the wrong drug, resulting in patient harm, the pharmacy and/or pharmacist can then sue the technician.

Technicians play a vital role in any pharmacy setting, and, depending on the competence and experience of the technician, as well as corporate policy and state law, their duties are increasing as more responsibility is placed upon them. Some states allow technicians to reconstitute oral liquids, call a physician for refill authorization, compound medications for dispensing, and accept called-in prescriptions from a physician's office. Some states register, license, certify, require training, and even have CE requirements for technicians. To handle the ever-increasing prescription volume while providing the best care and not compromising patient safety, some pharmacies are focusing on more defined and precise roles of technicians, assigning specific tasks/roles to specific areas. I believe these roles are beneficial to pharmacy operations and will continue to increase, and presumably most pharmacists would agree. However, the likelihood of liability is also increased.

It is an understatement that good technicians are vital to the pharmacist's practice and any pharmacy's success. However, as technicians continue to acquire more skills and accept more responsibility, the likelihood of prescription errors and liability also increases. Liability for one's own actions is tough enough, but liability for another's actions may be a tougher pill to swallow. Pharmacists are well advised to be mindful of their potential liability resulting from technician action, in addition to their own.