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Pharmacist in New York mislabeled wrong prescription

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W

Wrong_med

Guest
What is the name of your state? new york

My doctor wrote a prescription for aciphex for my acid reflux disorder. The pharmacist gave me a bottle of pills with his label reading aciphex, but the bottle contained aricept (an alzhiemer's drug). I took the whole bottle and renewed the prescription with the same thing happening again only this time at a much higher dose as per my physician. I became very ill and suffered from severe aricept overdose symptoms, including but not limited to severe abdominal pain, diminished eyesight, etc. and was hospitalized by my physician at the recommendation of the poison control center. Aricept, in the dosage I was taking, can cause your heart to cease functioning.

I retained an attorney who contacted the pharmacist's insurance carrier approximately 6 months after the incident, before filing any legal action and I was told that the pharmacist's insurance carrier is disavowing any claim because the pharmacist never notified them of the incident. My lawyer has told me they have the right to walk away from indemnifying the phamacist and that since the corporation has very few assests, there is basically no civil case, that he (the pharmacist) is for all practical purposes judgement proof and that he (the lawyer) is dropping my case.

My question is does the insurance company have the right to ask in what range the damages are that I am seeking and then disavow the claim? The pharmacist has admitted to everything and the state board of education is presently investigating the incident, I believe, because of notification by the hospital.

Does Nerw York state law actually allow me to be seriously injured and then be injured further by the fact that the law denies me any recourse? I would appreciate any legal advice.
 


D

David.v.Goliath

Guest
i would try another attorney, no one is bullet proof. The court can also make the insurance company accept the claim.
 

vrzirn

Senior Member
The attorney is correct. The carrier can refuse the claim and the pharmacist's corp is, essentially, judgement proof due to lack of assets.
It would take a lawsuit by the pharmacist to prove "bad faith" against the carrier. He is probably unwilling to pursue this option. Perhaps he is ready to retire and is telling himself, "The hell with all this".
Are you fully recovered?
 
W

Wrong_med

Guest
The pharmacist is in his late thirties or early forties. He had just opened a second pharmacy when I suffered the unfortunate incident. I doubt highly he is thinking of retiring or leaving the profession.

As for my present health, I am suffering from severly diminished vision and the early stages of cataracts in both eyes. Symptoms indicative of a massive aricept overdose. Prior to the incident, I was diagnosed with major clinical depression and my psychiatrist has diagnosed my depression as having deepened considerably since the overdose. A massive aricept overdose can, in and of itself, trigger a major depression in someone suffering no symptoms of depression prior to the overdose.

I also suffer from Hepatitis C which I had prior to the overdose. Since the massive amounts of aricept were metabolized in my liver, the doctors are concerned that the pain in my upper right abdomin could be caused by liver damage brought on by the aricept. Liver damage is also a major cause of depression. I am still undergoing tests to determine the condition of my liver.

I have other physical ailments that are also indicative of an aricept overdose, but the few I've named are the major problems I am presently facing. Those plus the hospital and doctor bills I've incurred, although I was lucky enough that my medical insurance paid much of the cost.

The maximum doseage of aricept should be, according to the manufacturer, 10mg/day and a dose that high should be attained only after a gradual buildup from 5mg or less over a period of 4 to 5 weeks. Because of the mistake, I started at 10 mg of aricept and went to 40mg/day over the next 3 months at the doctors orders, both the doctor and I thinking the bottle contained aciphex as the label stated. Before being hospitalized, I had complained to the doctors treating me that I was losing my vision, vomiting with severe abdominal pain, losing weight as well as other symptoms and they could not find a cause since no one was aware of the aricept. It had gotten to the point where I told my wife my health was failing rapidly and, if no cause could be found, I honestly felt I would be dead before the holidays. I am not an alarmist.

The doctors in the hospital told me they were surprised I hadn't died and that had I continued taking the pills at the doseage I was on, there was a good chance the poisoning would have caused my death. The pharmacist and his insurance company were notified of my intent to sue before my lawyer even filed an action so as not to delay written notification to both the pharmacist and his insurance company. At this point, an action still has not been filed. From my reading, it is my understanding that either the insured or the injured party may serve notice to the insurance company and the injured party can not be held to the same time frame as the insured in his contractual obligation as stated in his policy. Also, it is my understanding that the insurance company can not place its own interests ahead of those of the insured. Disavowing at this point would serve them well, but leave their insured open for a substantial lawsuit. This practice appears to have been deemed "bad faith" on the part of insurance companies by the presiding judges in a number of New York civil actions where the judge ruled the insurance companies must indemnify the insured.

If my understanding is correct (actually that is the first part of my question, is it?) can any lawyers out there advise me on the best course of action to take?
 

vrzirn

Senior Member
Do not be surprised if the pharmacy corporation declares BK after you win your judgement. If you are truly fortunate and recover, the damages will not be large. To collect at all, you would need to pursue the "bad faith" claim against the mal-practice carrier.
Your attorney may not be willing to front the costs of this litigation. It is going to be long and expensive. If the Pharmacy Board revokes the license and puts him out of business, you will also lose any chance to negotiate a settlement.
 
W

Wrong_med

Guest
Thank you for your input. It has been very helpful in making me see a possible twist I wasn't anticipating. I am hoping that, since only a judge hears and decides on the point of law regarding the question of "bad faith" on the part of the insurer and whether the law requires the insurer to indemnify the pharmacist, they can not tie me up too long.

The pharmacist has already accurately admitted to everything that he has done in regard to this incident. I think that is why the insurance company is trying to disavow the case. A judge's ruling in my favor on the points mentioned above and there would be very little defense, if any, that they could muster to counter the charges. I imagine under those circumstances it would be in their best interest to settle quickly rather then drag it out and go to trial. This would also remove any negative impact on the damages if he were to file a BK or forced to close by the state.

The eye doctor has already informed me that my minor nearsightedness prior to the overdose has now become a situation where he can not correct my eyes to 20/20 vision even with lenses. He also told me that I will continue to see my sight diminish due to the growth of the cataracts and that surgery on the cataracts, when warranted, will not restore my eyesight to what it had been. I am hoping to have better luck regarding my kidneys, liver and the depression I suffer from as well as a few other symptoms which, while not as serious, have helped to lower my quality of life at this point a notch or two.

Your comment about my lawyer was right on the mark. I think your reasoning was correct. I also think the remarks made by the insurance company's attorney ( the company being one of the largest, if not the largest, in the country) may have intimidated him somewhat.

Thanks again for the input and if you, or anyone else can add more to this discussion it would be greatly appreciated.
 

vrzirn

Senior Member
Be prepared for many physical examinations by medical experts in all areas of expertise on "their side". You will also have to provide copies of paid bills and records of your continuing care.
The age factor alone would prevent your vision from being retored to the level it had been. You may find, however, that intra-ocular lens replacements do a fantastic job.
Good luck. Try not to settle until you are farily stable. I realize time may be of the essence.
 

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