Hy-Vee faces aggravating circumstances in prescription error death

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The family of a woman who died because she took the wrong medication will get a new trial against the pharmacy on the issue of damages for aggravating circumstances, the Missouri Court of Appeals has held.

The Western District cited the pharmacist’s failure to review prescriptions, the receipt of the phone-in order by a pharmacy technician without direct supervision, the failure to counsel the patient upon receiving a high-alert medication and the failure to improve procedures as a result of the death.

“The jury would be entitled to conclude that Hy-Vee’s claim that different practices would not have prevented Ms. Oyler’s death, and its failure to institute the remedial measures suggested by the evidence, exhibited its indifference to, and disregard for, the serious risk of injury to patients like Ms. Oyler,” Judge Alok Ahuja wrote.

Leland F. Dempsey and Michael W. Manners, of Kansas City, represented decedent Joyce Oyler.

“The facts were really egregious here, so I would be surprised if the court had not ruled the way it did. Most importantly, even after the pharmacy learned about this, they continued to do business the same way. Whether they will change procedure now remains to be seen,” Manners said.

“The possibility of being exposed to the equivalent of punitive damages may give them an incentive to not expose Missourians to this danger,” he said.

Dempsey said: “The problem with the caps is that there is no financial incentive for the pharmacy to do the right thing. There’s no appropriate deterrent. This case will stand for the proposition that if the conduct rises to this level, you should be able to submit these damages to the jury.”

Jeffrey A. Kennard, Steven G. Brown, Susan F. Robertson and J. Zachary Bickel, of Kansas City, represented the defendant. Kennard declined comment.

Oyler was released from Heartland Regional Medical Center on Oct. 9, 2013 after being treated for a fluid buildup in her lungs. A nurse called in a prescription order for multiple medications, including metolazone, a daily diuretic, to the Hy-Vee pharmacy in St. Joseph.

A pharmacy technician made several errors taking the phone-in prescription. Most significantly, she ordered methotrexate instead of metolazone. Methotrexate is a chemotherapy drug also used to treat auto-immune disorders. It is classified as a high-alert medication, and when taken daily for more than a week, it can have irreversible, fatal side effects with symptoms manifesting only after the damage becomes untreatable.

Oyler took the medication daily as directed and died Oct. 30, 2013. Her husband and two adult sons filed a wrongful death suit in Buchanan County against Hy-Vee and the medical center. The medical center was dismissed after settlement.

The pharmacy tech lacked pharmacy training and had worked in the floral department before transferring to the pharmacy. An expert for the plaintiffs testified that technicians used a drop-down computer menu by typing in the first few letters of a drug. He also testified that pharmacy employees should provide counseling with high-alert drugs and new prescriptions, but the employee in this case only asked if the Oylers had questions. The store’s pharmacist testified that he reviewed the prescription but did not catch the mistake.

The jury returned a $2 million verdict for the Oylers after Hy-Vee admitted negligence at trial. The trial court reduced the award to $125,000 under applicable damages caps. The court also granted the defendant’s motion for a directed verdict on the issue of aggravating circumstances damages.

The Western District explained that such damages are evaluated by the same standard as punitive damages and may be awarded if the defendant “knew or had reason to know a high degree of probability existed that the action would result in injury.”

The appellate court cited testimony that pharmacist review was particularly important because the store’s computer system lacked a “hard stop” warning used around the country to prevent medication errors. The court concentrated on evidence that the pharmacy allowed technicians, rather than pharmacists, to receive phone orders, and that technicians were allowed to do so without the direct supervision of pharmacists. A corporate representative testified that Hy-Vee’s technicians were frequently hired to work in the pharmacy without pharmaceutical training or education.

The pharmacy’s failure to offer counseling to patients picking up new or dangerous drugs was also a factor. A plaintiff’s expert testified that asking if the patient has questions is not sufficient.

The court also emphasized Hy-Vee’s failure to change its procedures after Oyler’s death.

“Hy-Vee’s failure to take any meaningful corrective action following Ms. Oyler’s death supports the conclusion that its conduct exhibited complete indifference or a conscious disregard for Ms. Oyler’s safety,” Ahuja concluded.

The case is Oyler v. Hy-Vee, Inc., WD79742.