Is Writing an Illegible Prescription Medical Malpractice?

The Trial

The physician moved to dismiss the case against him on the grounds that the statute of limitations for a medical malpractice case was 2.5 years, and that period of time had already passed.

The lower court agreed and dismissed the case against the doctor. But the patient appealed, claiming that the doctor’s act was ordinary negligence, which has a longer statute of limitations, and thus the case was still valid against him.

The Decision

On appeal, the court noted that in differentiating between ordinary negligence and medical malpractice, the most important factor is the nature of the duty owed to the plaintiff.

“A negligent act or omission by a healthcare provider that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician to a particular patient constitutes medical malpractice,” cited the court.

The Bottom Line

If the act is part of rendering medical treatment or making a diagnosis, it will be considered medical malpractice. If it’s not—for example, the doctor leaving a spill on the floor of the office that someone slips on—it will be considered ordinary negligence.

In this case, writing a prescription for the treatment of hypothyroidism was rendering medical treatment, and doing so negligently would be considered medical malpractice, for which the statute of limitations had already run out.

Reference:

Kelty v. Genovese Drug Stores, Inc., 2023 N.Y. Slip Op. 1282 (N.Y. App. Div. 2023) https://casetext.com/case/kelty-v-genovese-drug-stores-inc

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times.