Phyllis J. Lile-King | Attorney

When Is a Negligence Action Appropriate for Wrongful Death                                from Chemotherapy Toxicity?

Phyllis Lile-King*

Negligence is defined as acts that are unreasonable.  In the medical context, negligence occurs when a practitioner’s treatment falls outside the reasonably accepted standard of care practiced by other practitioners.  Chemotherapy overdose errors are almost always lethal.  Their causes are multi-factorial, either as a result of an ordering- physician error, a pharmacy dispensing error or a nursing administration error.   Dosing errors occur when the physician either orders an unreasonable dose, an inappropriate medication or combination of medications for the stage or condition, or does not accurately and clearly communicate his orders.  Reasonableness is defined by the standards of practice within the relevant community or in the literature.    A pharmacy error occurs either when the pharmacy does not accurately dispense the medication(s) ordered, when its labeling is confusing or unclear, or when its protocols do not “catch” a dosing error or drug-drug interaction or contraindication.  In this way, pharmacists may be liable for failing as a second line of defense for the physician.  Nursing errors occur when the nurse fails to carry out the order as written, makes conversion errors, inaccurately sets infusion equipment, mis-documents, or fails to monitor and recognize signs that suggest that the chemotherapy is inappropriate or toxic.  Hospitals are vicariously negligent as a result of an agent’s (physician’s, pharmacist’s, nurse’s) negligence, and are directly negligent when they fail to have systems and processes that serve to ensure accurate and appropriate care.  Examples include lack of or inadequate processes for preventing errors, such as having two nurses independently double-check orders before infusion or lack of an electronic system that “flags” dosing, flow, rate or drug-drug interaction or dispensing errors for chemotherapy drugs.  Processes that can positively affect and prevent medication overdose errors include

•        Ordering, dispensing and administration systems with parameters set to alert when medications, doses or rates fall outside parameters, with specialized protocols for independent double-checks for when the intent is to exceed such parameters;

•        systems with specialized or dedicated nursing and specialized rounding pharmacists to dispense and administer chemotherapy drugs;

•        chemotherapy certification and  training of nurses, both in orientation and in core annual competencies;

•        standardization of types and brands of infusion pumps used, and physician, nurse and pharmacist training with the specific infusion pumps being utilized,  their labeling and operation;

•        use of “smart pumps” with alerts for dosing, dose rate and flow rate limits;

•         standardized systems for writing, labeling and administering chemotherapy drugs;

•         use of written checklists, and independent double-checking at the dispensing and administration stages;

•        posted protocols for determining when patients are appropriate to receive chemotherapy;

•        posted protocols for monitoring patients receiving chemotherapy and posted protocols for recognizing and managing overdose and toxicity of chemotherapy drugs.        

A patient who dies as a result of chemotherapy overdose can bring a drug overdose lawsuit, although sometimes the damages are difficult to ascertain with certainty.  Some maintain that a cancer patient whose death is hastened by a medical error has “low” damages because the losses are calculated by reference to how long the patient would have lived “but for” the negligence.  However, the ultimate arbiters of the value of several months, weeks or days to the family of a cancer patient are juries.  And arguably, the value of even a few additional days with a child or spouse may be inestimable.

*Phyllis Lile-King, is Senior Lecturing Fellow at Duke University School of Law, and a trial lawyer in Greensboro, North Carolina.  A graduate of the Georgetown College and the University of Virginia School of Law, for the past twenty years, she has reed families of patients who died as a result of drug overdoses, including overdoses as a result of physician errors, pharmacy and medication errors and nursing errors.  In addition, she provides legal consultation with medical clinics and facilities across the country, performing root cause analyses after medication errors, and she performs medication error audits and works with facilities to develop processes and protocols to prevent medication overdoses.  She and her husband have three children.   

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Published by Medical Law Perspectives