The PDA is a defence association and a trades union and amongst other things, puts in place an insurance contract to ensure that funding is available for complex and costly cases. These may include criminal proceedings such as the Elizabeth Lee case, regulatory or employment disputes, and of course it enables the payment of compensation to injured parties as a result of a negligent act of a member. Sometimes, the costs for individual cases can run into six figures.
Full PDA membership provides personal professional indemnity cover for pharmacists whether they are an employee or self employed irrespective of what branch of pharmacy they practice in.
Vicarious liability
Employees are told that they have protection from their employer in the form of ‘vicarious liability’, this is a semi-strict liability imposed on an employer in respect of negligent acts committed by an employee whilst in the course of their employment. It is a legal obligation and one which they cannot escape, though they can subsequently reclaim their financial exposure from their employees if they so wish.
So if an employer is vicariously liable, then why is it advisable to carry personal insurance?
Exposure to claims
In strict law, the employer’s liability is additional to and not in substitution for the employee’s liability for his or her own actions – the employee remains personally liable to the victim. There is always a term found in contracts of employment that an employee will exercise all reasonable care and skill during the course of employment.
An employee who is negligent is in breach of such a term and the employer who has been held vicariously liable for the harm caused may seek to recover any losses suffered by them – such as paying out compensation to a patient harmed by the actions of the employee pharmacist.
Although instances of employers taking such action against its employees are not common, case law shows that employers have won compensation claims against their employees because they successfully argued that the employee had engaged in ‘wilful misconduct’. In pharmacy, pharmacists are increasingly being disciplined and even dismissed, for failing to follow SOPs. In one recent case the employer acknowledged that the pharmacist deviated from the usual SOP in the interests of the patient but still dismissed her. Once employers take this line of approach, it is easy to see how they may label dispensing errors as ‘gross misconduct’ (a dismissible act) or they may deem them to be ‘wilful misconduct’. What has occurred in pharmacy is that some employers have pursued their employees for the legal costs incurred in a dispute involving their employee.
The reason why it is important for pharmacists to carry their own indemnity insurance however, is not because it will help to determine who should or should not pay for any negligence claim, the real nub of this issue is that he who controls the claim controls the defence strategy and will be able to determine exactly whose interests will be of primary importance.
Being in control of your own defence
There have been three recent high profile cases that demonstrate why pharmacists should remain in control of their own defence.
- The ‘peppermint’ water case where a pharmacist and pre-reg faced charges for offences under the Medicines Act for a dispensing error.
- The ‘Prestatyn’ case; where a pharmacist faced charges for offences under the Medicine’s Act for a dispensing error.
- And then there was the Elizabeth Lee case where she faced charges for offences under the Medicines Act for a dispensing error.
In the first two cases the pharmacists had their defence managed and paid for by their employer and in the latter the pharmacist was a member of the PDA. In the first two cases the employees were prosecuted.
In the Elizabeth Lee case, she was initially prosecuted, she then went to the Royal Court of Appeal; successfully had one of the original decisions overturned, her custodial sentence quashed and secured a landmark precedent judgement that means that an individual employee or locum pharmacist never be charged under section 85.5 in the future, as the Court of Appeal determined that a breach of this section of the Medicines Act could ONLY EVER be made by an owner of a pharmacy.
We feel that it would be highly unlikely that had she relied on her employer’s defence efforts, that they would ever had taken the line of defence that was taken by the PDA, which resulted in a striking out of the original prosecution and a landmark ruling that was very hostile for anyone who is an employer.
Serious incidents – competing interests
Some incidents that can lead to patients being caused significant harm or even death can lead to police and regulatory investigations, employer disciplinary action and finally compensation to the victim or their families. The more serious the incident the more the pharmacist, the technician or pre-registration graduate and the employer are exposed. The danger to the individual pharmacist in allowing the employer to control their defence strategy is that the employer may want to extract itself from the firing line to protect its brand. An employer’s defence strategy will rarely be primarily constructed to look after the interests of the employee or locum.
The medical, dental and nursing professions are renowned for ensuring that they have their own protection – indeed when the PDA represents its members in coroners’ inquests employed doctors and nurses rarely rely on their Trust’s legal team to defend them; their own defence association secures good lawyers and a robust defence position on their behalf. In contrast, some pharmacists do not turn up to these inquests with representation that is independent of their employer and often feel that they have lost out.
In a recent communication the dental defence association issued a statement to its members; “Under vicarious liability, employers remain theoretically liable for the acts or omissions of their employees but the General Dental Council still requires all registered dental professionals to demonstrate they are properly indemnified and patients are able to claim any compensation they may be entitled to. We do not think Dental Care Practitioners should rely on vicarious liability alone. Without membership of a dental defence organisation and the benefits of independent dento-legal advice it brings, it is possible that dentists may not be fully discharging their duties under General Dental Council guidance and they may be professionally and personally vulnerable.”
Who is holding the umbrella?
At the PDA we liken it to holding an umbrella. If you are in a storm and you are dependent on another person carrying an umbrella to keep you dry, with the best will in the world and however attentive the other may be, at some stage or other, you will get wet. There may be a change in the direction of the wind, or you may come to a lamp post in the street and the only way to get around it is if you both go different ways before you meet at the other side; the person who holds the umbrella stays dry all the time. It’s a bit like that with your own defence. No matter how much you trust the other interested parties, it is inevitable that at some stage in the proceedings your interests will not be taken care of.
PDA recognises that there will be those occasions where for whatever reason a pharmacist may wish its employer to handle their defence in a specific incident. However, many of these matters are highly nuanced and often, knowing when ones interests are beginning to lose out requires an expert independent view. Pharmacist defence really does need to be independent of the employer and of any organisation whose role is to look after the interests of the employer.
Originally published in the PDA’s Insight Magazine, Summer 2011 issue, this article remains just as relevant ten years later.