As professionals well know, the phrase “nobody’s perfect” applies to them as much as it applies to anyone else in the work force.  Regardless of a person’s calling, everyone makes an occasional mistake during the course of their work.  However, professionals are typically held to a much higher standard than “non-professionals”, or non-regulated employees.  A question often arises as to whether what may variously be described as an error, mistake or breach of the standard of practice of a profession always constitutes professional misconduct, meriting some form of discipline.  This issue was considered in a very recent case involving a pharmacist.

In this case, the pharmacist was alleged to have committed an act of professional misconduct in that the member breached a standard of practice of the profession by dispensing the wrong medication. While the member did not dispute doing so, the member argued that this dispensing error did not amount to professional misconduct.  The evidence was that on the day the dispensing error occurred, the pharmacy was very busy and the pharmacist was working alone.  The pharmacist also admitted that even though it was the usual practice to compare the two drug identification numbers (“DIN”), the member failed to do so.

The Ontario College of Pharmacists argued that failing to compare DIN numbers constituted a breach of a professional standard and that the Discipline Committee must therefore find that the member engaged in professional misconduct. The College urged the Discipline Committee not to see the member’s conduct as simply a one-time error that did not warrant discipline, “as this characterization was not in the interest of the public or the profession”.

On the other hand, the pharmacist argued that this dispensing error represented an isolated event, resulting from simple human error for which the member took responsibility.  It did not, therefore, constitute “professional misconduct”, warranting a penalty.  The member pointed specifically to a written standard of practice that obliges pharmacists to “assume responsibility for medication discrepancies and errors”,  and to take necessary steps to resolve the matter.  The member argued that this requirement in fact assumes that people make mistakes.

The Discipline Committee found that while a dispensing error did in fact occur, as admitted by the member, this error did not constitute professional misconduct.  The panel found that while double-checking DIN numbers is appropriate practice, which the member breached, this error did not constitute “professional misconduct” because:

There was apparently an attempt to identify the DIN number to verify the accuracy of the prescription but an error took place in that process.

• The member acted as a reasonable, competent professional and followed a reasonable procedure.  Interestingly, the panel of the Discipline Committee then distinguished a breach of “an accepted procedural protocol” (checking DIN numbers) and “standards of practice”. However, the Discipline Committee’s reasons do not explain how the panel distinguished between the two.
• When the member realized the dispensing error, the member acted in an appropriate manner.
• The member’s evidence that it was the member’s practice to compare DIN numbers, which demonstrated an awareness of the steps required to dispense prescriptions accurately.
• The mere fact that an error occurred does not mean that “appropriate knowledge was not applied”.

This case is quite significant, in that a Discipline Committee panel has clearly made a distinction between breaching an “accepted procedural protocol”, and a “standard of practice”.  Therefore, it can be argued that this case stands with the proposition that if a professional is otherwise clearly competent, and an error took place which can reasonably be viewed as an exception to the usual or general rule, the Discipline Committee will not find that the error actually constitutes professional misconduct.  This case will no doubt give considerable comfort to all professionals, as it reflects common wisdom as noted at the beginning of this article. Having said that, practitioners will likely not obtain the benefit of this principle unless they are otherwise obviously conscientious, the error was relatively innocuous and the member took appropriate follow up measures.

[Professional Practice and Liability on the Net is a monthly Internet newsletter addressing issue of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 393 University Avenue, Suite 2000, Toronto M5G 1E6. Or, call 599-2200, ext. 232, or email: bleblanc@sml-law.com.  Visit our website at http://www.sml-law.com. Comments and suggestions are also welcome. ]

Professional Practice and Liability on the Net is a monthly internet newsletter addressing issues of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON  M5H 2Y4. Or, call 599-2200, ext. 232, or email bleblanc@sml-law.com. Comments and suggestions are also welcome.