Liability for Prescription Drug Problems

Litigating the Nursing Home Case (James T. O’Reilly & Katharine Van Tassel 2nd ed. 2014)

Posted: 9 Nov 2020

See all articles by Katharine A. Van Tassel

Katharine A. Van Tassel

Case Western Reserve University School of Law

James T. O'Reilly

Independent

Date Written: May 1, 2014

Abstract

Medications are an integral part of the care provided to residents of nursing facilities. A study of 33,301 nursing facility residents revealed that an average of 6.7 medications was prescribed per resident, with 27 percent of residents taking nine or more medications. This pattern of multiple prescriptions issued by multiple caregivers is referred to by many as “polypharmacy.” Elders are more at risk for the side effects that can be associated with medications simply because of the physiologic changes that come as part of the aging process. Elders commonly have multiple different medical conditions and many of these conditions may affect the absorption, distribution, metabolism, or elimination of medications from the body. This Chapter starts by discussing appropriate medical management of polypharmacy in elders, including continuous evaluations by the interdisciplinary team of whether there are means other than medications to accomplish the same goals. The Centers for Medicaid and Medicare Services requires that nursing homes have a proper medication management plan for every resident. Without the constant vigilance that this plan requires, a broad range of adverse consequences such as medication interactions, depression, confusion, immobility, falls, and related hip fractures can result from any medication or combination of medications, or the use of a medication without adequate indications, in excessive dose, for an excessive duration, or without adequate monitoring.

The average 75-year-old has three chronic conditions and takes five prescription drugs. The injuries associated with these drugs are estimated to be 80 percent avoidable. This Chapter reviews the role that the Centers for Medicaid & Medicare Services State Operations Manual, Appendix PP, Guidance to Surveyors for Long Term Care Facilities plays in medication management plans designed to minimize these types of injuries.

For example, analysis of antipsychotic drug use by 693,000 Medicare nursing home residents found that 28.5 percent of the doses received were excessive and 32.2 percent lacked appropriate indications for use. The American Geriatrics Society recommends against the prescription of benzodiazepines or other sedative hypnotics in older adults as a first choice for insomnia, agitation, or delirium because the use of these medications doubles the risk of car accidents, falls and hip fractures in older adults.

A review of the steps that should be taken after an injury occurs from a problem with a resident’s medications is provided. Finally, this Chapter surveys the legal implications of different types of medication errors, including the role of regulatory compliance as a shield to insulate against liability and as a sword as part of a negligence per se action.

Keywords: nursing home liability, medication errors, polypharmacy, elder neglect,elder abuse, elder law, long-term care, tort, personal injury

Suggested Citation

Van Tassel, Katharine A. and O'Reilly, James T., Liability for Prescription Drug Problems (May 1, 2014). Litigating the Nursing Home Case (James T. O’Reilly & Katharine Van Tassel 2nd ed. 2014), Available at SSRN: https://ssrn.com/abstract=3638527

Katharine A. Van Tassel (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
(216) 368-1673 (Phone)
44106 (Fax)

James T. O'Reilly

Independent ( email )

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