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SavyLawyer
SavyLawyer, Attorney
Category: Legal
Satisfied Customers: 4296
Experience:  Licensed to practice law, I have experience in dealing with a wide variety of legal issues.
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What are my rights if a pharmacy gives my medication to someone

Customer Question

What are my rights if a pharmacy gives my medication to someone else?
Submitted: 2 years ago.
Category: Legal
Expert:  SavyLawyer replied 2 years ago.

SavyLawyer :

Hello, and thank you for contacting Just Answer.

SavyLawyer :

A pharmacy accidentally giving your prescription to a different customer arguably is a violation of the Health Insurance Portability Accountability Act (HIPAA). HIPAA requires certain health care organizations (including pharmacies) to maintain records in a certain way and to protect certain types of health information, including prescriptions that are written. There is no private right to sue under HIPAA, but you can file a complaint with the Department of Health and Human Services, and they will, at their discretion investigate and sanction any violations of this law.

SavyLawyer :

Of course, the pharmacy must also still fill the prescription for you.

SavyLawyer :

The Department of Health and Human Services complaint process can be started at:

SavyLawyer :

http://www.hhs.gov/ocr/privacy/hipaa/complaints/index.html

SavyLawyer :

Another option would be to file a complaint with the Texas State Board of Pharmacy. Instructions for doing so can be found at their website:

SavyLawyer :

http://www.tsbp.state.tx.us/consumer/complaint.htm

Customer:

I have no right to sue even if at one time I was given a prescription that belonged to someone else. And this time my prescription was given to someone else?

SavyLawyer :

Not unless you can show that actual damages occurred. Truth be told, you can sue for anything you want to, but the court will dismiss it unless you can show a cause of action and that damages occurred. You can certainly make an argument for negligence, where the pharmacy had a duty of care towards you, the duty was breached by either giving you the wrong prescription or giving your prescription to someone else, but in order to be successful, you would have to show that you were harmed in some way (which is what we mean by "Damages").

SavyLawyer :

Consequently, a lawsuit may be an uphill battle unless you can show that damages occurred (ie, you took the wrong medication and suffered significant medical issues, etc).

SavyLawyer :

The administrative complaints are still available to you even when damages did not occur, which is why I raised the possibility of a HIPAA complaint and/or a complaint to the State Board of Pharmacy.

SavyLawyer :

You certainly could file a suit for negligence, but proving damages may be a sticking point. If you want to sit down and review the possibility of a negligence suit with an attorney, that is always a good idea. The Texas State Bar Association has an attorney referral website at:

SavyLawyer :

http://www.texasbar.com/AM/Template.cfm?Section=Lawyer_Referral_Service_LRIS_

Customer:

ok, my privacy was broken being that the medication in question is a mental disorder medication. It according to the pharmacist was given to someone who lives on the SAME STREET as we do. The damage could be that neighbors are finding out of my sons condition and could cause a stir on our street.

SavyLawyer :

Absolutely, that is a violation of privacy. The problem will be putting a dollar amount on what is lost due to the negligence, courts do not like to guess at damages. The issue is that there is no private right to sue for a breach of this type of medical privacy under a privacy theory, that is what HIPAA was for and it is enforced by the government, not by a private right of action for a lawsuit.

SavyLawyer :

Now, under a negligence theory (rather than a privacy theory), a suit could be brought, so long as you can show damages. I can certainly see how you can argue that the damage is to your family's privacy, but showing that as a compensable damage in a negligence claim is going to be difficult.

Customer:

I have already filed the complaint with the state board of pharmacy. You would recommend that I just leave it alone and allow the State Board investigate the matter.

SavyLawyer :

Now, one of the types of damages that you can go after in a negligence case are called "punitive" damages, where you do not have to prove a causal relationship to the damages, it is more by way of punishing the bad actor for the negligence. However, punitive damages are generally reserved for cases of gross misconduct.

SavyLawyer :

As this is an informational site only, I cannot recommend what action you take. What I can do, and as I have done above, is explain the difficulties in proving damages for a suit for negligence based on the information provided. Again, sitting down with an attorney in person and reviewing all of the facts may get you a different answer, and it never hurts to do so.

SavyLawyer :

Filing a complaint with the Department of Health and Human Services is still another option open to you under a HIPAA violation.

SavyLawyer :

Ultimately, the decision whether or not to pursue a lawsuit is up to you, preferably in consultation with a local attorney. Just be aware, as we have discussed, of the elements that are necessary to prove a negligence case, when deciding whether or not it is worth the cost and time of pursuing a lawsuit.

SavyLawyer, Attorney
Category: Legal
Satisfied Customers: 4296
Experience: Licensed to practice law, I have experience in dealing with a wide variety of legal issues.
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SavyLawyer
SavyLawyer
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4296 Satisfied Customers
Licensed to practice law, I have experience in dealing with a wide variety of legal issues.