Chanda Givens wanted to assure the health of her unborn child when she became pregnant last February. Her doctor prescribed a prenatal vitamin, Materna. But instead, a Walgreens store in suburban St. Louis gave her Matulane, a chemotherapy drug that interferes with cell growth.
According to the federal lawsuit she later filed against Walgreens, Givens, then 29, suffered weeks of "nausea, vomiting, neurologic symptoms ... dizziness, lightheadedness, chills and shortness of breath." A medical exam showed her fetus was not developing normally. She miscarried in early April.
She said the loss of her baby was a direct result of Walgreens' giving her the wrong drug, and she and her husband Courtenay sought actual and punitive damages in excess of $75,000. Her attorneys contended Walgreens failed her on multiple levels in terms of supervising its personnel and verifying the prescription with her doctor.
Was Walgreens really to blame? What caused the error? There is no way to know: The case was settled out of court a few weeks after the lawsuit was filed. Givens, her husband and her attorneys now cannot talk about it publicly because they signed a confidentiality agreement.
USA Today found a number of lawsuits that alleged corporate malfeasance in cases of pharmacy errors at Walgreens and CVS. Many were settled, and nearly all the settlements included confidentiality agreements.
"Settlements buy silence," attorney J. Douglas Peters says. "Attorneys have an ethical Catch 22: They have a duty to their client and a duty to the public good. But their first duty is to their client. And if the client is going to get paid, the big-box pharmacies insist on silence."
That's why Peters, who practices in Detroit, is unable to talk specifically about individual cases of pharmacy errors he has settled over the years. He says he has seen a pattern in which drug chains settled cases after they were asked to produce data revealing what happens behind the drug counter, such as how many prescriptions pharmacists are expected to fill in how much time.
Barry Furrow, director of the health law concentration at the Drexel University College of Law, says pharmacies have two major reasons to insist on confidential settlements. First, to avoid bad publicity in a field where public trust is important. Second, to keep potentially damaging information from plaintiff lawyers.
The problem, Furrow says, is such agreements make it difficult to detect patterns of errors at pharmacies, though it's in the public interest to know if they exist. Furrow, a law professor, writes textbooks on health law. "There's a whole world of research that's very hard to do," he says. "It is hard to find out much of anything, even if I talk to lawyers, because they can't tell me much. It's hard to spot patterns and see what's going wrong."
Walgreens challenges the notion that it typically asks for confidentiality in settling such cases. "Rather than a strict policy," the chain said in a written statement, "we consider each case as unique and handle it individually."
CVS, which also answered in a written statement, said: "Confidentiality agreements are a common practice for all businesses in commercial transactions and in litigation. By including the confidentiality provision, CVS follows standard procedures typical for resolution of any liability claim."
Michael Krauss, who teaches legal ethics at George Mason University Law School, says it's true confidentiality is agreed to "in the majority of tort suits," when a company or individual's reputation is at stake, as in medical or pharmaceutical malpractice. "If you and I agree to make a contract, we can condition that contract on secrecy," Krauss says. "And that's all a settlement is, a contract. Remember, there is no (court) judgment - it is a voluntary payment."
Legislatures fear crowded courts
Reformers argue that when litigants "avail themselves of the state dispute mechanism, they should have to pay the publicity price," Krauss says. But he says legislatures are loath to change the rules because they fear many more cases would go to trial and crowd the courts.
"The tricky thing" in cases involving pharmacy errors, Krauss says, "is many people believe the public health is involved. It seems a little bit like extortion. It's not exactly that, but it seems like money for silence."
Detroit attorney Peters describes "two levels of secrecy. One is confidentiality. But even before you get to a settlement, there is the protective order, which most companies will ask for (in court) as a precondition to produce documents." The reason drug chains give, he says, is to keep "trade-secret stuff" from competitors.
Walgreens was required to supply recent prescription-error data chainwide in a Tennessee federal lawsuit filed by the family of Trey Jones, a five-year-old mistakenly given an anabolic steroid. But U.S. District Court Judge Aleta Trauger granted Walgreens' motion for a protective order. She wrote lawyers for Jones' family were entitled to the information for purposes of pretrial discovery, "but not for purposes of making a publicity 'splash' against the defendant."
A typical settlement includes boilerplate language such as this: Terms are "confidential and are not to be publicized, revealed, disclosed or discussed directly or indirectly with any representative of the print or electronic media, or to any professional or trade publication or organization."
This wording was provided by an attorney who asked not to be identified for legal reasons. He says drug chains never admit culpability when paying out settlements. He cites a typical clause that characterizes a settlement as "a compromise of doubtful and disputed claims, that payment ... is in full accord and satisfaction of any and all claims (and) is not to be construed as an admission of liability, but on the contrary, the parties released expressly deny any liability ... and intend merely to avoid the costs and expenses associated with litigation."
Errors are generally not made public by state pharmacy boards unless disciplinary action is taken - even in cases of death or serious injury, according to Carmen Catizone, executive director of the National Association of Boards of Pharmacy.
North Carolina is the only state that makes public all errors involving death or serious injury, he says, adding his group has tried for 10 years to persuade other states to mandate such reporting. After significant errors such as the Givens case make news, there are demands that errors be tracked. "But once that initial outrage dies down," Catizone says, "the issue is left to politics. Then we lose."
As for Givens, one of her attorneys told the Associated Press in October it's uncertain if taking a chemotherapy drug could affect her long-term health. What is certain is she lost what would have been her second child. "It's been a nightmare," she told KTVI, a St. Louis television station.
That was before settlement.
Now she says nothing.