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Letters to the Editor
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PI insurance
To insure or not to insure?
From Mr G. Southall-Edwards, MRPharmS
R. S. Boorman (PJ, 19 March, p334) makes the case for all pharmacists
having their own professional indemnity insurance, whatever their employers
may say that they provide. He is correct in stating that there is nothing
to stop the employer (or its insurers) from going after the negligent
employee and seeking to reclaim damages paid out by virtue of his or
her actions, which may have resulted in a claim against the employer
by reason of the latter’s “vicarious liability” for
these actions.
A claim was made on such a basis in Lister v Romford Ice and Cold
Storage Limited [1957] AC 555 and the House of Lords decided that the employer
should recover damages against the negligent employee, who had injured
his father while acting in the course of his employment. Since the result
was likely to lead to a flood of similar claims, the government of the
day indicated that it intended to legislate to prevent such actions becoming
a serious threat to industrial relations; the response was a gentleman’s
agreement between the government and the major insurers that they would
not in future seek to recover damages which they had paid out on behalf
of employers of negligent employees. To my knowledge, this non-legally
binding agreement continues to be the case.
The National Pharmaceutical Association’s “we never have and we
never would” statement, which appeared below Mr Boorman’s letter,
is a reiteration of similar
words in The Journal last year (PJ, 15 May 2004,
p606), which I said then in my letter in the same issue, were “a gratuitous
promise, unsupported by consideration”. By this I meant that although
I do not doubt the NPA’s sincerity, it has not made a statement which
is legally binding upon it.
Although the makers of the statement may have had good intentions at the time
of making it, I wonder what their underwriters would force them to do in the
event that, say, a dispensing error were to lead to serious and permanent brain
damage in an up-and-coming, high-earning professional person aged, say, 30
years, necessitating life-long care and compensation for loss of amenity, plus
a huge claim from the relatives for loss of their dependency on the victim’s
prospective earnings. This is the nightmare scenario for insurers — far
worse than any sudden death arising from an error, because the victim in my
example would survive to need expensive care.
If such an event were to occur, damages could well run to over £300,000
at current rates; faced with such a pay out, would the NPA’s underwriters
let them keep their “gentleman’s agreement”? The answer is
unknown, but the safe way to ensure that no locum or employee is ever in such
a situation and to ensure that his or her interests are properly defended,
is to carry one’s own professional indemnity/defence insurance, whatever
the contractor or employer may provide through its own insurers. Remember that
when there is a conflict between the interests of the employer and the employee,
the NPA is bound by its constitution to assist its member in preference to
the employee; where does that leave the servant of the more fortunate master?
As Mr Boorman observes, we live in an increasingly litigation-conscious society
with a burgeoning number of claims being fuelled by the ready availability
of “conditional fee” arrangements and much television and other
media advertising of their availability. The purchase of one’s own PI
insurance costs not much more per year than the average locum or pharmacist
employee can earn in a day before tax; is it worth taking any risk for such
a small saving, whether or not it can be offset against income tax liability?
Graham Southall-Edwards
Barrister-at-Law
Tyrol, Austria
The relationship between SOPs and PI insurance
From Dr R. J. Schmidt, MRPharmS
R. S. Boorman’s letter (PJ, 19 March, p334) and John D’Arcy’s
reply from the National Pharmaceutical Association regarding public liability
insurance seem to miss the point as regards standard operating procedures
and professional liability. Judging by the commentary provided by Mr
Boorman, I am not sure that his employers (or their advisers) understand
the nature and purpose of the written SOPs that they have introduced.
The Royal Pharmaceutical Society requires community pharmacies to carry
out their dispensary activities in accordance with SOPs. These are the
documentary evidence of the existence of a quality system in the dispensary,
and describe the way in which things are done in order to ensure that
a consistent, effective and safe service is provided. They are part of
a wider quality system that starts at the beginning of the supply chain
where a medicine is manufactured, and which should extend up to the point
at which a dispensed medicine is taken by or administered to a patient.
So, if a patient experiences an unexpected problem, it should be possible
to follow the trail back through the quality system to the root cause
of the problem and then, if necessary and appropriate, to make changes
to procedures (and hence to SOPs) that lessen the probability of the
problem reoccurring.
In part, SOPs simply explain the mechanics of how things are done in
the pharmacy to which they apply, eg, how the prescription charge is
to be rung into the till, how the tablet counter is to be used, or how
the dispensary computer back-up is to be performed. In part, SOPs also
import guidance provided by the Society’s “Medicines, ethics
and practice” guide. In part, they also import good practice generated
from the experiences of others. In turn, properly implemented SOPs become
an extension of each employee’s contract of employment — a
matter that seems not to be widely recognised. Any employees who are
obliged by their employers to comply with an SOP should be trained with
the SOP in mind. The fact that training has been given and received should
then be properly documented, with both the trainer and the trainee adding
their dated signatures to the staff training sheet associated with that
particular SOP. A dispensary SOP needs also to be ratified by the superintendent
pharmacist on behalf of the employer because of its status as an extension
of employees’ contracts of employment.
Once implemented, an SOP becomes an evolving document that is changed
whenever a better way is found of doing the activities covered by that
SOP. A particularly important feature of an SOP is that it is a powerful
management tool that can be used to engage staff as “stakeholders” if
they can be encouraged to contribute to the evolution of their SOPs.
The corollary to this is that SOPs that are not properly implemented
(merely “introduced”) serve no real function. Indeed, it
could be argued that any pharmacy that has not properly implemented its
SOPs has, de facto, failed to comply with the Society’s requirement
that dispensary SOPs should have been in place in all community pharmacies
since 1 January 2005. This is a patient safety issue and, therefore,
any failure to comply with the requirement represents a disciplinary
matter in which the Society’s inspectors should now be taking great
interest.
Mr Boorman states that he is uncomfortable with certain aspects of the
SOPs with which he is expected to comply. On making representations to
his employer, he is told that the SOP in question has to remain as it
stands because it represents “company policy”. This immediately
tells me that the SOP cannot have been properly implemented. If the matters
over which Mr Boorman has taken issue with his employer relate directly
to the delivery of the pharmaceutical service from his dispensary then
he, as the pharmacist in control of the dispensary, surely has the right
to amend the SOP if, by doing so, a perceived risk to patient safety
is reduced. The superintendent pharmacist has no right to interfere in
this matter of professional judgement unless he can provide a reasoned
and evidence-based argument as to why the SOP should not be changed.
Citing “company policy” is neither a reasoned nor sufficient
argument. Indeed, if the proposed amendment does represent a better and
safer way of doing the things in question, then the superintendent pharmacist
is also then professionally obliged to consider implementing the amended
SOP across all branches — and thanking his employee pharmacist
for his contribution to quality and safety of services provided by the
company.
Clearly, if an employee pharmacist can make a professional judgement
that a certain activity is best carried out in one way while a superintendent
pharmacist believes it is better for that activity to be carried out
in a different way, then there will surely come a time when this conflict
of professional opinion will translate to an apportionment of blame for
a dispensing error. If an employee pharmacist has (as I believe he has)
the professional right and duty to amend dispensary SOPs as he sees fit,
then he should also recognise the importance of having his own personal
professional indemnity insurance. If the superintendent pharmacist fails
to ratify local SOPs, a serious conflict of interest will arise in the
event that an action is brought against the company for a dispensing
error perpetrated under an unratified local SOP. The public declaration
by the NPA’s chief executive that the association “has never
sought to recover any losses from an uninsured employee … and has
no intention of doing so” may come back to haunt him.
Richard J. Schmidt
Barnoldswick, Lancashire
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Pharmaceutical Journal