Under the Federal Tort Claims Act (28 U.S.C.S. §2674) , tort actions may be maintained against the United States for injuries that would be actionable in private litigation under similar circumstances. The ability of military personnel to maintain such actions against the government is limited by the Feres doctrine, which bars negligence claims for injuries sustained incident to, or arising out of military service. Feres v. United States.
Since the pharmacist is presumably a government employee, and your mother's injuries did not arise out of military service, it would appear that the pharmacist's negligence would fall under the FTCA and thus your mother would be able to sue if all of the elements of negligence can be proven. Three of the four elements of negligence, i.e. duty, breach, and causation likely are present. The fourth element, damages, would be hard to prove given the lack of physical injury to your mother, but a clever lawyer who does some further research or has expertise with such cases may be able to get your mother some money.
This a medical malpractice issue. I have been led to believe that in the event a physician or other medical person performs work exactly oposite that ordered by the physician, liability for medical malpractice only exits if the victim has suffered a permanent injury of some kind. If the negligent behavior causes injury but that injury does not result in a permanent impairment, ie if the victim complrtly recovers in a reasonable amount of time then there are no damages and thus no case.
I ask your thoughts on the following: My mother recently suffered a series of severe chest pains with shortness of breath. She went to her Physician who after running the appropriate tests concluded that my Mother had not suffered a heart attack. He did however, prescribe certain medication, and directed my Mother home with orders to get lots of rest, take the medication as prescribed and to follow up with him in a week.
Upon being examined a week later,she told the Doctor that the medicine he had prescribed was making her sick. The Doctor asked to see her prescription. It turns out the pharmacist totally botched the order, and gave my Mom a totally incorrect medication. According to her, the Doctor said had she continued taking the medication she was given for as little as another week she most likely would have had a heart attack as a result of taking that medication. So the issue is, even though her Doctor caught it in time and most likely she has sustained no permanent damage. Does she still have a negligence action in tort against the pharmacist. But before you answer that I must tell you this. My Dad is retired Military. Therefore my Mom goes on base to the base hospital to get their prescriptions filled. I also heard somewhere that the Government shields military Doctors and medical personel from med-mal making it virtually impossible to sue. Ladies and Gentlmen, as always I would appreciate your thoughts.
network news magazine shows. Do a Google search.
You may have a cause of action vs. the doctor for his negligent handwriting. Why can't MDs or their secretaries just print the friggin' prescription?!?! Lazy A-holes! I hate doctors!
-- Modified on 5/22/2003 3:28:39 AM
although I totally agree with you with regards to the lousy handwriting, if the Pharmacist is not certain what it is he/she needs to pick up the phone and verify.
There are some Physicians and hospitals who are now using computer generated prescriptions, I know, I have received a few. The problem with this method is apparently either the law or the policy of one or two large drug store chains in my area require certain things to be handwritten on a otherwise completly legible prescription. Besides the Doctors signature(some are so lazy in their signature I am surprised they don't experience any forgeries), certain things like the type of medication even though very clearly printed on the prescription must be hand writen as well. Some Physicains and physicians assistants don't fill out the prescription properly. So when I present it to the pharmacy they refuse to fill it. I then have to go back and get the Doctor to fill in the correct information. That pisses them off. What pisses them off even more is when I make them correct the prescription when I first get it before I leave.
Please read my original post on this thread. Then read mrphillys reply. If you agree, if you believe you can make a case, you are located in the Los Angeles area, or in the San Joaquin Valley, i.e Visalia, Tulare, Fresno,etc, and you want the case, either email me at [email protected], or pm me or both amd lets talk. Thanks.
Under the Federal Tort Claims Act (28 U.S.C.S. §2674) , tort actions may be maintained against the United States for injuries that would be actionable in private litigation under similar circumstances. The ability of military personnel to maintain such actions against the government is limited by the Feres doctrine, which bars negligence claims for injuries sustained incident to, or arising out of military service. Feres v. United States.
Since the pharmacist is presumably a government employee, and your mother's injuries did not arise out of military service, it would appear that the pharmacist's negligence would fall under the FTCA and thus your mother would be able to sue if all of the elements of negligence can be proven. Three of the four elements of negligence, i.e. duty, breach, and causation likely are present. The fourth element, damages, would be hard to prove given the lack of physical injury to your mother, but a clever lawyer who does some further research or has expertise with such cases may be able to get your mother some money.
Doesn't anyone take ANY responsibility for themselves anymore? Of course the pharmacist was wrong, but why sue? Based on your above post about medical disability, you sound like you're trying to take the system for all you can get.
If people could not or did not sue, there would be many more deaths at the hands of negligent doctors and medical professionals. Our legal system forces doctors to be extra-cautious. Even with the ridiculously high judgments that are sometimes assessed against doctors, our system is one of the best in the world. For example, in Greece, where it is almost impossible to win when suing a doctor for negligence, mishaps seem to happen much more frequently than in this country. I know; my grandmother died because of negligent care she received at a hospital, at the age of 65. If making doctors extra-cautious and preventing deaths due to negligence is the result, I'm all for doctors having to pay up when they are careless.
Since you don't appear to have private mail. please email me at
[email protected] with an email address I can reach you at.
Thanks.
This individual had, not had, still has a moral and above all legal duty to take the utmost care in reading and filling prescriptions. In exchange for being granted a license for the privelege of working in a field not all people are allowed to work in, that pharmacist is held to a higher standard of care than you or I.
In addition, since people always seem to hold me to the highest standard possible in all areas of my life, I hold everyone else to the same. In addition, the law recognizes that there is little if any margin of error in this profession. Finally, this individual injured my Mother, when that happens, I have no mercy, none, mistake or not, I go right for the jugular.
Had this been say an auto accident, and no one was injured just a little damage to the car, would I sue? Hell no. but what happened, hell yes.
There's a fundamental law of physics: For every action, there is an equal and opposite reaction.
Corporate America is able to buy influence and protection from government agencies and legislators.
Medical professionals fail, or refuse, to enact oversight and disciplinary measures to protect the public from quacks.
You're obviously ignorant of the medical care provided by some/many/most military medical care providers.
As was wisely pointed out above, lawsuits provide protection to consumers. They exist because they must--action (coporate purchasing ower) / reaction (relief in the legal arena).
Were you familiar with law beyond the merely hypothetical, you would also know most medmal actions are not initiatied whimsically or capriciously.
How did this person injure your mother? Yes, she may have felt sick, but was she really injured? Zithromax, Tri-Cyclen, and AZT make millions of Americans sick on a daily basis, and that's when the drugs are properly dispensed and prescribed. That doesn't qualify as injury. Did your mom have permanent physical or neurological damage? Doubtful. Yes, she may have suffered consequences if the Dr. didn't catch the mistake, but the fact of the matter is that she did not. What would have happened and what happened in reality are totally different in the court of law. If anything, the pharmacist will be put on probation or suspended (by the state licensure committee and/or their employer) depending upon their work history. Because your mom did not sustain a permanent injury, I doubt you will recieve any monetary compensation. The courts are awarding less and less in personal injury cases, and quite frankly, the judges feel they are a total waste of time.
I will respond in a manner apparently you will understand. I DON"T NEED YOUR OR ANYONE ELSES SARCASTIC REMARKS!!. Especially, when I don't see a your cv anywhere which reflects your having earned a JD, or LLB or better from a reputable US law school. By your crack I can only presume your a British or of some other misguided european persuasion. Allow me to enlighten you my misguided anglo/european cousin.
1. While I have not earned the privelege (yet), of practicing before a court of law in the state of California, my legal education incomplete though it may be, tells me that 3 of the 4 required elements are present. I knew this when I made the initial post. Mrphilly merely confirmed my conviction. As to the fourth element, damages, that element has, as of yet, not been determined, one way or the other by my Mothers Physician, i.e unlike you a properly trained, and licensed professional. That determination will be made after he has perfromed all the appropriate tests.
2. Once damages, no matter how slight have been determined then the law here in the Fantastic United States of America(a nation which guarantees the continued existabce of your homeland) allowes for the injured to seek redress in a court of law. Now the damages may exist, but they may be subject to interptetation. When that happens two Attorneys square off, and the better arguement right or wrong prevails. This is lawyering at its finest! I don't know where you get your information but absent your presenting concrete evidence I must presume you are incorrect in your assesment of how Judges are treating personal injury cases.
3.Why am I doing this? Because I can, I know that may offend your British/European sensibilities, but I am tired of people getting away with potentially dangerous behavior. I am sick and tired of people getting off with a no harm, no foul attitude. Because you know what? The next time that pharmacist screws up he just might kill someone. Your comparison of various other pharmaceuticals making people sick is unsound. I mean whose fault is it that no one takes any action, legal or otherwise to force the manufacturer to adjust the formula so others won't get sick. I admit europeans have a habit of blindly accepting things like that.
4. I pity that you apparently don't feel the same way about your mother as I do because if you did, you would do anything to protect her. One of the first things they teach you in law school is to take any factual situation and try to find a cause of action, i.e a lawsuit. Contrary to what you may think I am not the "typical american" you think I am. I am not law suit crazy. However, in this instance the elements are present and I will proceed because the law allows me to. However, there is more to it than that. I want to make sure that pharmacist is more cautious in fillling his prescriptions in the future. As I said earlier, mess with my family, intentional or not, I will go for your jugular.
5. This is the United States, and since you live here you are entitled to your opinion. However, if you cannot be objective, I would appreciate you keeping you snide comments to yourself, like the lady I hope you are. Unless you are from Ukraine I have yet to meet a russian that wasn't a smart ass I hope you are not from Ukraine.
I would appreciate you keeping your snide comments to yourself, like the lady I hope you are.
My comments were not intended to be snide. They were simply honest. I love how men like yourself HATE it when a woman disagrees with someone. Since when do ladies have to keep comments to themselves? You are insinuating that women aren't allowed or supposed to make comments, snide or not. I don't claim to be a lawyer, however I am a law student at one of the top law schools in the United States.
P.S. B.S, 1999 - Florida State University
M.L.S., 2001 - Florida State University
J.D., Spring 2004 - Georgetown University
P.P.S. I wasn't being the least bit sarcastic, and I'm not European.
