After botched prescription refill, Wisconsin pharmacist settles with widower for $325,0000

It was supposed to be just another routine prescription refill.

On June 2, 2014, Barbara Hall picked up her prescription for methadone, an opioid she had been taking for more than a year. Four days later, the 67-year-old woman's daughter found her dead in her East Troy home.

Soon afterward, a pharmacist at Miller Pharmacy in Mukwonago discovered that a fellow druggist had erred and gave Hall double the amount of methadone that had been prescribed — a miscue that Hall's husband contends caused his wife's death.

"She was on most of those medications for years and years and years," Gary Hall, her husband of 48 years, said in a hearing last year, referring to the half-dozen painkillers and antidepressants court records show his wife was taking. "She was on methadone 5 (mgs) for what, a year-and-a-half, something like that, and all of a sudden it goes from 5 to 10 (mgs) and she is dead in four days."

Her death sparked an unusual legal fight — pharmacists are rarely taken to court for making an error.

The suit was settled for $325,000 and the case was dismissed in January, just before it was set to go to trial. The settlement was $25,000 less than the state-mandated damage cap for a wrongful death case.

"It's not like anything I've seen as a lawyer or mediator," said Charles Stierman, a longtime medical malpractice lawyer turned mediator. Stierman said that not one of the approximately 2,500 cases he's heard as a mediator has involved a pharmaceutical error.

Making Hall's case even more extraordinary is the written admission of Stephen Herbst, a pharmacist who now owns Miller Pharmacy, that the pharmacy erred when it filled Hall's prescription for methadone.

Herbst was reprimanded by the Pharmacy Examining Board and ordered to complete eight hours of education about controlled substances and pay $500 to cover the cost of the state proceedings.

"A lousy 500 bucks," said Hall, 71. "You could run over the neighbor's dog and be fined more than that."

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Thaddeus Schumacher, a Fitchburg pharmacist and chairman of the examining board, declined to comment.

No clear line exists between the acknowledged error and Hall's death, according to the pharmacy's insurer and Michael Russart, an attorney for Herbst.

Russart noted Hall was taking a half-dozen painkillers and antidepressants and the Walworth County coroner's office ruled the death was the result of "multiple medical intoxication."

So why settle?

"Mr. Hall did suffer a loss, an error was made," Russart said, adding that "there is a debate" about whether there is "a causal connection between the two."

The error was discovered by two other Miller Pharmacy pharmacists who reviewed files after Barbara Hall died. The pair saw that Hall's prescription called for 5mg tablets of methadone but a technician typed it in the computer system as 10mg.

When Herbst filled the prescription, he "failed to note the discrepancy in dosage between the prescription presented and the electronically entered file," according to the state reprimand against Herbst.

As a result, Herbst "filled the methadone prescription with 10mg tablets instead of 5mg tablets," the order states.

That error may not have been discovered had Herbst not notified Louis Noto, the physician who prescribed the methadone.

"We are contacting you to let you know of an error that took place in our dispensing of medication to Barb," Herbst wrote in a letter to Noto two weeks after Barbara Hall died. "... the prescription was written as it usually was and that the dispensing of 10 mg was an error of Miller Pharmacy."

Noto, a pain management doctor who also treated Gary Hall, told the widower about the letter after Hall said he was considering going to court to find out why Barbara Hall died.

Hall said Noto told him, "He said, 'I'm not worried about a lawsuit because I have the letter from the pharmacy.' " The doctor showed the letter to Gary Hall.

"I was in total shock," Hall said. "It was so unbelievable."

Hall said Herbst had told him about error earlier but the importance of it didn't hit him until he saw the letter.

Contacted at the pharmacy, Herbst declined to say why he wrote the letter and referred questions to Russart.

"Mr. Herbst was very honorable in owning up to the mistake," Russart said.

Soon after seeing the letter, Hall soon contacted Molly Lavin, an attorney who has handled about 10 claims involving errors by pharmacists over 17 years.

"This is the only one that went into litigation," Lavin said.

Lavin said the letter strengthened Hall's case.

"A strong inference could be made from the letter that her death was a result of the mistake," Lavin said.

The damages that Hall could collect, however, were limited by state law to $350,000. The cap applies to noneconomic damages, such as loss of companionship, in all adult wrongful death claims.

"It's a very difficult thing to try to explain to someone that just lost a loved one that $350,000 is the value of your loss, no matter how long you've been married," said Lavin, Hall's attorney. "People don't want want to believe it."

Gary Hall said he met his future bride when they were both 14 and "she skipped in front of me in the milk line."

Barbara Hall denied cutting in line, and eventually, Gary got over the slight.

"I thought she was the most beautiful girl in the school."

Both Gary and Barbara Hall dealt with a variety of health issues — Gary Hall retired at age 50 after a heart attack and Barbara Hall was a cancer survivor and took medications for chronic pain.

Still, Hall said that at the time of her death "everything was going great. She always told me, 'Gary, we could make it through anything as long as we have each other.' "

Since his wife's death, Hall said he has spent countless hours trying to get answers and raising concerns about what he saw as the mild punishment issued against Herbst and state laws that limit how much a survivor can collect in a wrongful death case.

"C'mon, you could kill somebody and there is a $350,000 cap on what their life was worth," said Hall, who has contacted several legislators to urge them to raise or eliminate the cap. "If it doesn't happen to you, you don't have any idea" there are laws capping damages.