“The plaintiff bar did not want to lose the potential for deep pockets,” said Richard Stevens, executive director of the West Virginia Pharmacists Association. “With tort reform in place, the plaintiff bar’s gravy train has dried up when it comes to medical malpractice. Walmart and other chain operations are the potential deep pockets in West Virginia today.”

Pharmacy malpractice exposure dates to 1986, when current definitions of what constitutes a healthcare provider were enacted into state law. The state legislature defined providers as “including, but not limited to” a list of entities, including physicians, hospitals, dentists, optometrists, and other practitioners.

Pharmacists, pharmacies, and others were not included because legislators wanted to be inclusive, not exclusive, Stevens explained. “It is clear that the legislature did not intentionally omit pharmacists and pharmacies,” he said. “They were following what was standard legislative practice at the time. That open-ended definition is common in all legislation and in all of the 60-some volumes of the state code.”

Not listing pharmacists and pharmacies made little practical difference, he continued. State courts consistently accepted legislative intent to include pharmacists and other practitioners as providers. When the legislature addressed tort reform in 2003, legislators, the governor, and the judiciary assumed that pharmacists, pharmacies, dental hygenists, and other groups that provide healthcare services were healthcare providers under West Virginia law.

“Too many liability insurance professionals, especially physicians, were leaving the state,” Sen. Stollings said. “They were leaving for one reason, liability insurance issues, so we decided to fix the problem. We created a medical malpractice umbrella for all healthcare providers. As far as I can see, pharmacists are clearly healthcare providers and ought to have the same protections as physicians and other providers.”

The state umbrella caps payments for pain, suffering, and other noneconomic damages at $250,000. Wrongful death or permanent disability damages are limited to $500,000 except in cases of gross negligence.

If multiple providers are included in a single malpractice action, each provider is included under the umbrella up to their percentage of fault and collateral payment from insurance, Social Security, and other sources must be deducted from a verdict before final judgment. Pharmacy’s place under the umbrella was challenged three years ago by a patient who suffered renal failure as a result of drug treatment. The physician’s financial liability was clearly limited, but the plaintiff challenged an initial finding that the pharmacist’s liability was also limited because pharmacists are healthcare providers.

The state Supreme Court eventually ruled that under English Common Law, pharmacists are not covered by the malpractice umbrella because they are not specifically listed in the state’s definition of healthcare provider. Stevens said the physician settled for $125,000, while the pharmacist who properly dispensed the drug paid nearly $3 million.

“The unfairness of it all is that because hospitals are specifically listed as providers, a hospital ambulatory outpatient pharmacy is protected but an independent pharmacy down the block does not have the same protection,” Stevens said. “SB 379 set out to remedy that problem.”

The bill easily passed the State Senate but ran into trouble in the House of Delegates. It had strong backing from the House minority whip, pharmacist Larry Border (R), and pharmacist Don Perdue (D), chair of the Health and Human Resources Committee.

The bill died in the House Judiciary Committee, which has heavy representation by plaintiff attorneys. “Once word got out that pharmacies were about to be protected, things went south,” Perdue said. “The trial attorneys saw Walmart and Kroger and other major chains getting away.”

The next step is still being discussed. Perdue and other legislators have promised to introduce similar legislation in the next session. One possible tweak is to add pharmacists, but not pharmacies, to the legal definition of healthcare provider.

Stevens favors the legal route.

He suggested waiting for the next malpractice case that involves a pharmacist or a pharmacy and taking the issue back to the state Supreme Court. “We have a different court now,” he said. “We have 20 years of precedent on our side and just one decision to reverse.”