Prescribing expired medications constitutes a medical mistake

By Greg Kohn

With the flu season in full swing, most people are encouraged to get the flu vaccine, particularly people who fall within the vulnerable age groups such as the elderly, immuno-compromised persons and the young. When people go to the clinic or hospital to get their shots, they expect that their health care provider will do his or her due diligence to ensure that the correct vaccine or medication is being used and that it has not expired.

Residents of New Jersey and New York may find it interesting to know that the dispensing and use of expired medication is a common medical mistake known as prescription error. In fact, in 1998 a toddler received a vaccine that had expired five months earlier. The vaccine was meant to protect the toddler from infections because the toddler’s spleen had been removed. A few months later, however, the toddler developed a bacterial infection, which led to gangrene. All of the toddler’s four limbs had to be amputated. In 2012, a jury awarded the family $12.6 million in its medical malpractice suit.

Some doctors report that patients are bringing back expired drugs to them, and some patients have reported doctors to the medical board for giving them expired drugs. Doctors report that free samples from pharmaceutical companies sit in their storage and expire. Health care providers have an ongoing duty to ensure that drugs and free samples they are dispensing and prescribing are not expired. In fact, the law requires them to track and discard expired medications.

As a measure to enhance patient safety, an electronic device has been developed to track samples, prescription drugs, and alert doctors when a drug has expired or if the drug has been recalled. The hope is that the use of this device will help prevent doctors from dispensing expired medicines.

The use of an electronic device to track medicines is a step forward in patient safety, but despite such technologies, medical mistakes still happen. As in the case with the toddler, harm resulted to the patient likely because the health care provider did not check the expiration date. All health care providers have an ongoing duty to provide a reasonable standard of care. When harm results to a patient, that patient and his or her family may be entitled to compensation.

Source:, “Medical Guide: When Medicines do More Harm Than Good,” Ken Rodriquez, Jan. 2013

About the Author
Greg Kohn is a partner at Nagel Rice and specializes in complex civil litigation cases, including professional malpractice, personal injury, class actions, wrongful death, products liability, and commercial litigation.  He has extensive experience representing clients in both state and federal court. Greg has tried many jury trials to verdict and has recovered over $50 million in settlements and verdicts in all types of personal injury matters including automobile accidents, wrongful death cases, slip and falls, and other catastrophic injury cases. Greg also handles medical malpractice cases, involving misdiagnoses, wrongful birth, and delayed cancer diagnosis. If you have questions regarding this article, you can contact Greg here.