Lawsuit over death caused by alleged prescription error to proceed
Aly Thomson, The Canadian Press
Published Wednesday, November 21, 2018 12:48PM EST
Last Updated Wednesday, November 21, 2018 4:22PM EST
HALIFAX -- A lawsuit launched by the son of a Nova Scotia senior whose death was allegedly caused by a small town pharmacy's prescription error can proceed, a judge has ruled.
Bernice Bond, 90, had a prescription filled at Canso Pharmacy Ltd. on May 3, 2016, and died June 16, 2016, from what a medical examiner described as an acute overdose of medication.
Bond's son, Carlton Bond, filed a statement of claim in Nova Scotia Supreme Court against the pharmacist and an unnamed pharmacy assistant on June 15, 2017, under the Fatal Injuries Act, alleging Bond was given an excessive amount of her prescription in error.
Lawyers for the defendants argued the case should not proceed because under the Pharmacy Act a lawsuit has to be filed within a year from when the "services were rendered," and therefore the plaintiff filed the claim six weeks too late.
But Bond's lawyer, Raymond Wagner, argued that his client had one year from the date of death under the Fatal Injuries Act.
Justice Joshua Arnold ruled that it is the Fatal Injuries Act that applies in this case and therefore the time frame set out in the Pharmacy Act is irrelevant.
He added that allowing the Pharmacy Act limitation to stand would "deprive the plaintiff of a strong claim."
"This was not a case of the plaintiff sitting on his rights and allowing the defendants to believe there was no potential for a claim," Arnold wrote.
"The six-week delay would have no discernable impact on the defendants' position, either as to defending the claim or advancing cogent evidence."
His decision said before the prescription was dispensed, pharmacist Alexandra Willson had discovered that an unnamed pharmacy assistant had prepared an incorrect dosage of Methotrexate, a drug that suppresses the immune system.
The assistant packaged the prescription to be taken once daily each week instead of once per week as prescribed, the decision said.
It said Willson directed the assistant to remove the extra tablets, but did not check the blister packages before dispensing them, and the assistant had again left excessive tablets in the packages.
Bernice Bond was admitted to hospital on May 24, 2016, and died on June 16, 2016. The medical examiner's report described the cause of death as "acute overdose of medication," namely Methotrexate.
The allegations have not been proven in court.
Kyla Russell and Sara-Jo Briand, lawyers for the defendants, could not be reached for comment Wednesday.
Wagner said the parties will now negotiate a resolution or the matter will go to trial.
He said the case highlights a broader issue related to the province's one-year limitation period under the Fatal Injuries Act.
"In the first year after a death, especially when somebody is very close, every anniversary is an important anniversary ... and to discard all those emotional scars and the emotional trauma that they're going through and have to focus on bringing forth an action is, in our respectful view, disrespectful to the people that have been harmed," said Wagner.
He added that Nova Scotia and Yukon are the only two places in the country that do not have a two-year limitation period in their Fatal Injuries Act.
Wagner said his firm plans to write to the province's justice minister and deputy minister asking them to "rectify this horrible circumstance."
In late 2016, the Nova Scotia College of Pharmacists ordered Willson to serve a two-month suspension, pay $12,500 in fines and legal costs and submit to a series of audits, as well as write exams, improve quality assurance programs and apologize to Bond's family.
The college committee, composed of two pharmacists and one member of the public, found the assistant "did not have sufficient training or experience in preparing compliance packages ... and (Willson) did not recheck" the package before the medicine was sent to Bond.
In addition, the findings noted that Willson had misled the college the year before by stating she had implemented a quality assurance program aimed at preventing errors, and that she had not reported a similar error in Bond's prescription that was detected and corrected a month earlier.