REL:05/13/2011
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2010-2011
____________________
1091740
____________________
Alice Nail
v.
Publix Super Markets, Inc.
Appeal from Jefferson Circuit Court
(CV-08-1433)
BOLIN, Justice.
Alice Nail appeals from a summary judgment entered in
favor of Publix Super Markets, Inc. ("Publix"), on Nail's
claim alleging a violation of the Alabama Medical Liability
1091740
Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975
("the AMLA").
We reverse and remand.
Facts and Procedural History
On August 7, 2003, Dr. Robert Sorrell performed a total
knee
arthroplasty
on
Nail.
Following
her
surgery,
Nail
suffered from a pulmonary thromboembolism, a blockage of the
main artery of the lung.
As a result, Dr. Sorrell prescribed
Coumadin, an anticoagulant medication.
Dr. M. Scott Touger
was Nail's physician following the surgery, and he continued
to prescribe Coumadin to treat Nail.
From August 2003 to July 2006, Dr. Touger prescribed for
Nail 1-milligram tablets of Coumadin to be taken five times a
day. Instead of indicating the specific dosage, however, the
prescriptions
stated
"Use
as
Directed"
or
"UAD."
Nail
refilled the prescriptions 15 times at a Publix grocery store
in Homewood.
On July 10, 2006, Nail telephoned Dr. Touger's office to
obtain a refill for her Coumadin.
A nurse in Dr. Touger's
office then telephoned the Publix pharmacy and gave a Publix
employee a prescription for 5-milligram tablets of Coumadin to
be "used as directed." Publix has a computer
2
system that
1091740
tracks its customers' prescriptions.
Publix also had a policy
to
with
counsel
all
of
prescriptions.
Nail
its
customers
picked
up
her
regard
prescription
to
their
from
the
Publix grocery store, and, when she did she signed a form
indicating
that
prescription.
she
Nail
was
states
declining
that
she
counseling
was
not
for
told
by
the
the
pharmacist that her prescription had been changed from 1milligram tablets to 5-milligram tablets.
Nail took the 5-milligram Coumadin tablets with the same
frequency as she took the 1-milligram Coumadin tablets, i.e.,
five times a day.
As a result, Nail was taking 25 milligrams
of Coumadin daily instead of 5 milligrams.
On July 19, 2006,
Nail went to the emergency room at Brookwood Medical Center
complaining of chest pain, back pain, coughing, and bruising
on her stomach.
Nail was admitted to the hospital, where she
was diagnosed with Coumadin toxicity and an epidural hematoma
of the cervical spinal cord.
Nail underwent surgery to remove
the hematoma.
On May 6, 2008, Nail sued Publix and Dr. Touger in the
Jefferson Circuit Court, alleging that both Publix and Dr.
3
1091740
Touger had violated the AMLA.
With regard to Publix, Nail
alleged as follows:
"a. Defendant Publix negligently and wantonly
failed to communicate to Ms. Nail that the dosage of
her Coumadin prescription had changed from the
previous fifteen (15) filled prescriptions;
"b. Defendant Publix negligently and wantonly
failed to counsel Ms. Nail on the effect of the
change in dosage of her Coumadin prescription;
"c. Defendant Publix negligently and wantonly
failed to train or failed to properly train its
pharmacists, agents, or employees on counseling
customers with regard to their prescriptions;
"d. Defendant Publix negligently and wantonly
failed
to
properly
monitor
and
police
its
pharmacists, agents, or employees with regard to
whether or not they were properly counseling
customers on their prescriptions.
"e. Defendant Publix negligently and wantonly
failed to ascertain the skill levels, training or
competence of their pharmacists.
"f. Defendant Publix negligently and wantonly
failed to have in place any effective method or
policy to properly counsel customers with regard to
changes in their prescriptions.
"g. Defendant Publix negligently and wantonly
failed to establish policies and procedures for
counseling
customers
with
regard
to
their
prescriptions.
"h. Defendant Publix negligently and wantonly
failed
to
abide
by
established
policies
and
procedures for counseling customers with regard to
their prescriptions.
4
1091740
"i. Defendant Publix negligently and wantonly
failed to establish policies and procedures for
counseling customers with regard to changes in their
prescriptions.
"j. Defendant Publix negligently and wantonly
failed
to
abide
by
established
policies
and
procedures for counseling customers with regard to
changes in their prescriptions.
"k. Defendant Publix negligently and wantonly
failed to establish policies and procedures for
reviewing patient files upon receiving prescription
orders via telephone, facsimile, or otherwise.
"l. Defendant Publix negligently and wantonly
failed to abide by policies and procedures for
reviewing patient files upon receiving prescription
requests via telephone, facsimile, or otherwise."
Publix answered and, on June 9, 2010, filed a summaryjudgment motion.
In support of its motion, Publix included a
copy of a "Prescription Insurance Claim and Counseling Log,"
which provided:
"The signature directly below of the patient,
guardian, or the authorized personal representative
of the patient certifies, on behalf of the patient
that
this
pharmacy
has
offered
the
patient
counseling on the medication dispensed as may be
required
by
state
regulations,
and
that
the
prescription below was received.
"For Customers with Prescription Drug Coverage:
Your signature certifies that the information
contained hereon is correct and that the person for
whom the prescription was written is eligible for
the benefits claims. You authorize the release of
5
1091740
all information contained on this log and on the
prescription and claim to which it corresponds, to
Publix Super Markets and as directed by your
prescription drug insurer.
"For
Customers
with
Workers'
Compensation
Coverage:
Your
signature
certifies
that
this
medication is for the treatment of an on-the-job
injury."
The log reflected that Nail had signed the log indicating that
on July 10, 2006, she was "offered" counseling and received
her medication. 1
Publix also included the testimony of its pharmacist,
Alison Walta.
Walta testified that one of her duties as a
pharmacist was to counsel her patients and that it is Publix's
policy and procedure to counsel every patient.
She stated
that under a pharmacist's standard of care, she is to ask the
patient if he or she has any questions and to discuss any
changes in the medication, including a change in strength or
dosage or a change in the drug and to make sure the patient
knows the purpose of the medication and what possible side
effect to look out for or any problems associated with the
1
Next to the signature line where Nail signed her name on
the form , there are two boxes indicating whether counseling
was "accepted" or "refused." There is check mark indicating
that Nail accepted counseling and initials next to the boxes.
There was no testimony reflecting who "checked" the box or
whose initials were beside the check.
6
1091740
medication.
Walta testified that she counseled Nail when Nail
picked up her prescription for Coumadin on July 10, 2006.
However, Walta could not remember precisely what she told
Nail.
Walta stated that her normal practice with regard to
counseling a patient taking Coumadin was to ask if the patient
was
being
tested
to
ascertain
the
effectiveness
of
blood
thinning and if the patient had talked with the patient's
doctor regarding the dosage and how often to take the Coumadin
if the prescription was to "use as directed."
Nail responded to Publix's summary-judgment motion and
attached
an
affidavit
from
Roger
Lander,
a
pharmacist.
Lander's affidavit provided, in pertinent part, as follows:
"2. As a licensed pharmacist in the State of
Alabama, the appropriate standard of care for a
pharmacy/pharmacist is to counsel its customers with
respect to their prescriptions which include changes
in certain medications and dosage.
"3. The reason such a standard of care is
applied
is
due
to
the
fact
that
the
pharmacy/pharmacist is supposed to be the second
review, or safety net, with respect to dangerous
drugs being given to its customers. This is one of
the reasons pharmacies now employ sophisticated
computer systems to track customer prescriptions.
This way, they can monitor significant changes in
medications and drug interactions, and they can
notify their customers of any irregularities with
ease.
7
1091740
"4. In this case, it is clear that Mrs. Nail's
prescription for Coumadin was changed from one (1)
milligram tablets to five (5) milligram tablets.
This change represented a significant change in
milligrams for a very dangerous drug after a
consistent
prescription
over
the
course
of
approximately fifteen (15) prescriptions of one (1)
milligram tablets which is clearly shown in the
printout from Publix attached hereto as Exhibit 'A.'
"5. This change should have been clearly
indicated to Mrs. Nail and documented as such, and
it would be a violation of the standard of care for
pharmacies/pharmacists to fail to inform Mrs. Nail
of such a significant change in the milligrams of
her Coumadin prescription.
"6. In addition, the fact that the prescription
was UAD (Use as Directed), informing Mrs. Nail was
even more important in light of her previous
prescriptions she had obtained from Publix.
"7. According to Mrs. Nail, she was never told
about this significant change. If her recollection
is
accurate,
the
failure
of
the
Publix
pharmacy/pharmacist to inform Mrs. Nail of the
change violated the standard of care for pharmacies
and pharmacists and resulted in Mrs. Nail consuming
twenty-five (25) milligrams of Coumadin per day and
her Coumadin toxicity."
Nail also attached her own affidavit in which she stated
that when she picked up her Coumadin prescription from the
Publix pharmacy, she was told to sign a sheet.
She stated
that no one at the Publix pharmacy offered to counsel her
regarding the Coumadin and that no one informed her that the
strength of the prescription had changed.
8
1091740
The trial court held a hearing on the summary-judgment
motion, and on August 19, 2010, the court entered an order in
favor of Publix on all claims.
On August 23, 2010, the trial
court made the order final pursuant to Rule 54(b), Ala. R.
Civ. P.
Nail timely appealed.
Standard of Review
Our standard of review of a summary judgment is well
settled:
"'The standard of review applicable to a summary
judgment is the same as the standard for granting
the motion....' McClendon v. Mountain Top Indoor
Flea Market, Inc., 601 So. 2d 957, 958 (Ala. 1992).
"'A summary judgment is proper when
there is no genuine issue of material fact
and the moving party is entitled to a
judgment as a matter of law. Rule 56(c)(3),
Ala. R. Civ. P. The burden is on the moving
party to make a prima facie showing that
there is no genuine issue of material fact
and that it is entitled to a judgment as a
matter of law. In determining whether the
movant has carried that burden, the court
is to view the evidence in a light most
favorable to the nonmoving party and to
draw all reasonable inferences in favor of
that party. To defeat a properly supported
summary judgment motion, the nonmoving
party must present "substantial evidence"
creating a genuine issue of material fact
-- "evidence of such weight and quality
that fair-minded persons in the exercise of
impartial judgment can reasonably infer the
existence of the fact sought to be proved."
9
1091740
Ala. Code 1975, § 12-21-12; West v.
Founders Life Assurance Co. of Florida, 547
So. 2d 870, 871 (Ala. 1989).'
"Capital Alliance Ins. Co. v. Thorough-Clean, Inc.,
639 So. 2d 1349, 1350 (Ala. 1994). Questions of law
are reviewed de novo. Alabama Republican Party v.
McGinley, 893 So. 2d 337, 342 (Ala. 2004)."
Pritchett v. ICN Med. Alliance, Inc.,
938 So. 2d 933, 935
(Ala. 2006).
Analysis
In Cackowski v. Wal-Mart Stores, Inc., 767 So. 2d 319
(Ala. 2000), this Court held that a pharmacist who allegedly
incorrectly
filled
a
patient's
prescription
was
included
within the definition of "other health care provider" in the
AMLA, and, because the patient's claims against the pharmacy
and pharmacist were governed by the AMLA, the patient had to
prove her case in accordance with the AMLA.
Under the AMLA,
"the plaintiff shall have the burden of proving by substantial
evidence that the health care provider failed to exercise such
reasonable
care,
skill,
and
diligence
as
other
similarly
situated health care providers in the same general line of
practice ordinarily have and exercise in a like case." § 6-5548(a), Ala. Code 1975.
10
1091740
"To prevail on a medical-malpractice claim, a
plaintiff must prove '"1) the appropriate standard
of care, 2) the [pharmacist's] deviation from that
standard, and 3) a proximate causal connection
between
the
[pharmacist's]
act
or
omission
constituting the breach and the injury sustained by
the plaintiff."'
Pruitt [v. Zeiger], 590 So. 2d
[236,] 238 [(Ala. 1991)](quoting Bradford v. McGee,
534 So. 2d 1076, 1079 (Ala. 1988))."
Giles v. Brookwood Health Servs., Inc., 5 So. 3d
533, 549
(Ala. 2008).
Nail argues that, based on her affidavit and on Lander's
affidavit, she presented a genuine issue of material fact as
to
whether
Publix,
through
its
pharmacist,
appropriate standard of care for pharmacies.
breached
the
Specifically,
Nail contends that, based on Lander's affidavit, Publix had a
duty
to
properly
counsel
her
as
to
the
change
in
her
prescription and that Publix also assumed a duty to counsel
its customers based on Walta's testimony.
Nail contends that
Publix had a duty to counsel its customers regarding a change
in dosage of medication and that Publix failed to do so in
this case.
Nail also argues that the learned-intermediary
doctrine does not apply in this case.
Nail
presented
expert
testimony
from
Landers,
a
pharmacist, which stated that the appropriate standard of care
11
1091740
for a pharmacy/pharmacist is to counsel its customers with
respect to their prescriptions, including any changes in the
dosage of the medication.
Landers testified that the reason
for the pharmacy/pharmacist counseling its patients is that
the counseling is supposed to be the second review, or safety
net, with respect to dangerous drugs being prescribed to its
customers and that this is one of the reasons pharmacies now
employ
sophisticated
computer
systems
to
track
customer
prescriptions –- so the pharmacies can monitor significant
changes in medications and spot potential drug interactions.
Landers opined that if Nail's recollection that Walta failed
to counsel her regarding the change in dosage is correct, then
Walta breached the standard of care, which resulted in Nail's
Coumadin toxicity.
Walta testified that, as a pharmacist, she had a duty to
counsel Nail regarding her prescription.
She testified that
although she could not remember the specific conversation that
she had with Nail, she would have counseled any customer who
was
picking
dosage.
up
medication
if
there
had
been
a
change
in
In its summary-judgment motion, Publix included the
log-in sheet that Nail signed regarding Publix's offer of
12
1091740
counseling
and
Nail's
receipt
of
her
prescription.
In
opposition to Publix's summary-judgment motion, Nail testified
that she was not counseled by Walta and that she was not told
that the strength of her medication had been changed.
She
stated that she signed a sheet that she thought indicated only
that she had received her prescription.
There was evidence of the standard of care applicable to
a pharmacist, i.e., that a pharmacist has a duty to counsel
customers
evidence
on
a
change
submitted
by
in
dosage
both
of
parties
any
in
medication.
support
of
The
and
in
opposition to the motion for a summary judgment presents a
question of fact as to whether Nail was counseled regarding
the change in her prescription for Coumadin from a 1-milligram
tablet to a 5-milligram tablet.
Viewing the evidence in a
light most favorable to Nail, as we are required to do, the
conflict in testimony supports Nail's argument that there is
a genuine issue of material fact as to whether Walta counseled
Nail regarding the change in dosage.
The question we must now
answer is whether the learned-intermediary doctrine applies to
Nail's
claims
against
Publix,
liability.
13
barring
the
pharmacy
from
1091740
In Stone v. Smith, Kline & French Laboratories, 447 So.
2d
1301
(Ala.
intermediary
1984),
doctrine
this
in
Court
a
case
adopted
the
addressing
learned-
whether
a
manufacturer's duty to warn extends beyond the prescribing
physician to the physician's patient who would ultimately use
the drugs.
The principle behind the learned-intermediary
doctrine
that
is
prescribing
physicians
act
as
learned
intermediaries between a manufacturer and the consumer/patient
and, therefore, the physician stands in the best position to
evaluate a patient's needs and assess the risks and benefits
of a particular course of treatment.
In Walls v. Alpharma
USPD, Inc., 887 So. 2d 881, 882 (Ala. 2004), we applied the
learned-intermediary doctrine to address whether a pharmacist
has a "duty to warn of foreseeable injuries from the use of
the prescription drug he/she is dispensing."
In Stone and
Walls, the duty at issue was a drug manufacturer's or a drug
dispenser's duty to warn customers of the potential risks or
side effects of a drug.
In Springhill Hospitals, Inc. v.
Larrimore, 5 So. 3d 513 (Ala. 2008), we applied the learnedintermediary doctrine in a situation where a patient alleged
that a pharmacist breached a duty by providing incomplete
14
1091740
dosing information to the patient's physician regarding a drug
prescribed
to
the
patient.
We
noted
that
the
learned-
intermediary doctrine addresses the question of liability in
light of the relationships between the parties involved in the
prescribing, distribution, and use of prescription drugs.
In
Springhill, the patient argued that the pharmacist voluntarily
undertook to give the physician information about the proper
dosage in administering the drug.
In addressing the patient's
argument that the pharmacist assumed a duty of care, this
Court stated:
"The cases cited by the estate are readily
distinguishable
from
this
one
and
therefore
unpersuasive. In each case cited, the respective
court found that the pharmacy or pharmacist had
voluntarily undertaken a duty to the customer based
on the interactions between the pharmacist and the
customer.
None
of
those
cases
addresses
the
voluntary
assumption
of
a
duty
based
on
a
pharmacist's
interaction
with
the
customer's
physician. See Ferguson [v. Williams], 101 N.C. App.
[265,] at 272, 399 S.E.2d [389,] at 393 [(1991)]('A
druggist simply has the duty to act with due,
ordinary care and diligence in compounding and
selling drugs. ... [H]owever, ... if a pharmacist
undertakes
to
advise
a
client
concerning
a
medication, the pharmacist is under a duty to advise
correctly.');
Baker [v. Arbor Drugs, Inc.], 215
Mich. App. [198,] at 205-06, 544 N.W.2d [727,] at
730-31 [(1996)] ('[T]here is no legal duty on the
part of a pharmacist to monitor and intervene in a
customer's reliance on drugs prescribed by a
licensed
treating
physician.
...
[However],
15
1091740
defendant [Arbor Drugs, Inc.] voluntarily assumed a
duty of care when it implemented the Arbortech Plus
[computer] system and then advertised that this
system would detect harmful drug interactions for
its customers.');
Cottam [v. CVS Pharmacy], 436
Mass. [316,] at 323-26, 764 N.E.2d [814,] at 821-23
[(2002)]('A pharmacy, like any other person or
entity, may voluntarily assume a duty ... to provide
information, advice or warnings to its customers.
... [T]he scope of the duty voluntarily undertaken
by a pharmacy is a fact-specific inquiry based on
the totality of the pharmacy's communications with
the
patient
and
the
patient's
reasonable
understanding, based on those communications, of
what the pharmacy has undertaken to provide.').
"Moreover, the pharmacist in Ferguson had
specific knowledge related to the patient's medical
history, and in Baker the pharmacy had taken steps
to
provide
warnings
based
on
the
customer's
individual medication profile.
Ferguson, 101
N.C.App. at 272, 399 S.E.2d at 394 ('It is
undisputed that [the pharmacist] knew that Ferguson
was allergic to Percodan .... It is also clear she
knew that Ferguson had suffered from an anaphylactic
reaction to Percodan.'); Baker, 215 Mich. App. at
205, 544 N.W.2d at 731 ('Plaintiff has presented
evidence that defendant implemented, used, and
advertised through the media that it used, the
Arbortech Plus computer system to monitor its
customers' medication profiles for adverse drug
interactions.').
Here, there is no evidence
indicating that [the pharmacist] knew anything of
[the decedent's] medical history.
"Further, the standard of care put forward by
the estate would place the physician in a position
adjunct to the pharmacist, resulting in exactly the
situation our decisions in Walls [v. Alpharma USPD,
Inc., 887 So. 2d 881 (Ala. 2004),] and Stone [v.
16
1091740
Smith, Kline & French Laboratories, 447 So. 2d 1301
(Ala.
1984),]
sought
to
prevent,
asking
the
pharmacist to intrude himself or herself into the
physician-patient relationship and requiring the
pharmacist to give advice or take actions that he or
she is neither licensed nor trained to give or take.
See Walls, 887 So. 2d at 886 ('"'[The physician's
standard of care regarding] proper dosages of
medication is not within the scope of matters on
which
nonphysicians
are
competent
....'
'[P]harmacists are not doctors and are not licensed
to prescribe medication because they lack the
physician's training in diagnosis and treatment.'"'
(quoting McKee [v. American Home Prods. Corp.], 113
Wash. 2d [701,] at 711, 782 P.2d [1045,] at 1051
[(1989)],
quoting
in
turn
Young
[v.
Key
Pharmaceuticals, Inc.], 112 Wash. 2d [216,] at 230,
770 P.2d [182,] at 190 [(1989)])).
"In light of the foregoing, we are unpersuaded
by the estate's argument that [the pharmacist]
voluntarily assumed a duty of care when he answered
Dr. McMahon's question about dosing colchicine.
Because we find the principles articulated in Walls
and Stone applicable to this case, we hold that the
learned-intermediary
doctrine
precludes
[the
hospital's] liability for harm resulting from any
mistakes on Dr. McMahon's part in prescribing
colchicine. In light of that holding, we hold that
the estate, therefore, did not present 'substantial
evidence
...
to
produce
a
factual
conflict
warranting jury consideration,' Jones Food Co. v.
Shipman, 981 So. 2d [355,] at 360-61 [(Ala. 2006)],
and that [the hospital] was entitled to a judgment
as a matter of law on this issue. Our decision on
this issue pretermits consideration of the other
issues argued by [the hospital] on this appeal."
5 So. 3d at 520-21 (footnote omitted).
17
1091740
In the present case, Nail argues that Publix had a duty
to tell her that her dosage had changed.
Nail is not arguing
that the pharmacist at Publix should have told her the risks
or side effects of Coumadin. Under the learned-intermediary
doctrine,
the
pharmacist
does
not
have
a
duty
to
warn
customers of the hazardous side effects either orally or by
way
of
the
manufacturer's
package
insert.
We
have
also
applied the learned-intermediary doctrine to bar a pharmacy's
liability
where
a
pharmacist
dosing information.
gave
Springhill.
a
physician
incomplete
The drug manufacturer has
the initial duty to warn the prescribing physician of side
effects and to give dosing guidelines, and the physician acts
as the learned intermediary between the drug manufacturer and
the patient when prescribing the drug.
medication
position
prescribed
to
patients.
evaluate
by
the
physicians,
needs
and
Pharmacists dispense
who
are
in
proclivities
the
best
of
their
However, Nail is arguing that the pharmacist should
have told her that there was a significant change in her
dosage of a very dangerous drug, not that Publix should have
warned her against any possible harm in taking that dosage
amount.
Notifying a customer that there has been a change in
18
1091740
prescription strength does not infringe upon the physicianpatient relationship.
learned-intermediary
Accordingly, we cannot say that the
doctrine
bars
Nail's
claim
against
Publix.
Based on the foregoing, the judgment of the trial court
is
reversed
and
the
cause
is
remanded
for
proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Cobb, C.J., and Woodall, Stuart, Parker, Main, and Wise,
JJ., concur.
Shaw, J., concurs in the result.
Murdock, J., dissents.
19
1091740
MURDOCK, Justice (dissenting).
I respectfully dissent.
I do not believe the law imposed
upon Publix Super Markets, Inc., or its pharmacist a duty to
discuss
with
Alice
Nail
the
fact
that
the
dosage
of
her
prescription for Coumadin had changed, nor do I believe that
Publix or its pharmacist assumed such a duty under the facts
of this case.
In
Stone
v.
Smith,
Kline
&
French
Laboratories,
447
So. 2d 1301, 1305 (Ala. 1984), this Court observed:
"'Prescription drugs are likely to be complex
medicines, esoteric in formula and varied in effect.
As a medical expert, the prescribing physician can
take into account the propensities of the drug as
well as the susceptibilities of his patient. His is
the task of weighing the benefits of any medication
against its potential dangers. The choice he makes
is an informed one, an individualized medical
judgment bottomed on a knowledge of both patient and
palliative. Pharmaceutical companies then, who must
warn ultimate purchasers of dangers inherent in
patent drugs sold over the counter, in selling
prescription drugs are required to warn only the
prescribing physician, who acts as a "learned
intermediary" between manufacturer and consumer.'"
(Quoting Reyes v. Wyeth Labs., 498 F.2d 1264, 1274 (5th Cir.
1974)(emphasis added).)
In Walls v. Alpharma USPD, Inc., 887 So. 2d 881 (Ala.
2004), this Court observed:
20
1091740
"'We agree with the Washington Supreme
Court, which surveyed the jurisdictions
extending the learned intermediary doctrine
to pharmacists and concluded:
"'"The pharmacist still has a
duty
to
accurately
fill
a
prescription [citation omitted]
and to be alert for clear errors
or mistakes in the prescription.
The pharmacist does not, however,
have
a
duty
to
question
a
judgment made by the physician as
to
the
propriety
of
a
prescription or to warn customers
of the hazardous side effects
associated with a drug, either
orally
or
by
way
of
the
manufacturer's package insert."
McKee v. American Home Products
[Corp.], 113 Wash. 2d [701,] at
720, 782 P.2d 1045 [(1989)].
"'In the present case, the pharmacist
accurately filled Nichols' prescription for
Gantanol. There were no clear errors on the
face of the prescription, Gantanol was not
contraindicated for use by Nichols, and Dr.
VandeGarde's decision to prescribe the drug
was within the realm of his professional
judgment.
"'Under the facts of this case, Super
D Drugs and its pharmacist owed no duty to
warn
Juanita
Nichols
or
the
doctor.
Summary judgment was proper.'
"Nichols [v. Central Merchandise, Inc.], 16 Kan.
App. 2d [65,] at 67-68, 817 P.2d [1131,] at 1133-34
[1991)] [(some emphasis added)]. Accord Cottam v.
CVS Pharmacy, 436 Mass. 316, 764 N.E.2d 814 (2002);
Moore ex rel. Moore v. Memorial Hosp. of Gulfport,
21
1091740
825
So.
2d
658
(Miss.
2002);
Coyle
v.
Richardson-Merrell, Inc., 526 Pa. 208, 584 A.2d 1383
(1991); Johnson v. Walgreen Co., 675 So. 2d 1036
(Fla. Dist. Ct. App. 1996); Walker v. Jack Eckerd
Corp., 209 Ga. App. 517, 434 S.E.2d 63 (1993);
Fakhouri v. Taylor, 248 Ill. App. 3d 328, 187 Ill.
Dec.
927,
618
N.E.2d
518
(1993);
Kinney
v.
Hutchinson, 449 So. 2d 696 (La. Ct. App. 1984);
Adkins v. Mong, 168 Mich. App. 726, 425 N.W.2d 151
(1988); Ferguson v. Williams, 101 N.C. App. 265, 399
S.E.2d 389 (1991); Griffith v. Blatt, 158 Or. App.
204, 973 P.2d 385 (1999); Morgan v. Wal-Mart Stores,
Inc., 30 S.W.3d 455 (Tex. App. 2000); Silves v.
King, 93 Wash. App. 873, 970 P.2d 790 (1999).
"In McKee v. American Home Products Corp., 113
Wash. 2d 701, 782 P.2d 1045 (1989), the Washington
Supreme Court stated:
"'The
relationship
between
the
physician-patient-manufacturer
applies
equally to the relationship between the
physician-patient and pharmacist. In both
circumstances the patient must look to the
physician, for it is only the physician who
can relate the propensities of the drug to
the physical idiosyncrasies of the patient.
"It is the physician who is in the best
position to decide when to use and how and
when to inform his patient regarding risks
and benefits pertaining to drug therapy."
W. Keeton, R. Keeton & D. Owen, Prosser and
Keeton on Torts § 96, at 688 (5th ed.
1984).
"'In Young v. Key Pharmaceuticals,
Inc., 112 Wash. 2d 216, 770 P.2d 182
(1989), we stated, "proper dosages of
medication is not within the scope of
matters
on
which
nonphysicians
are
competent...."
Young, at 230, 770 P.2d
182. We went on to hold that "pharmacists
22
1091740
are not doctors and are not licensed to
prescribe medication because they lack the
physician's training in diagnosis and
treatment." Young, at 230, 770 P.2d 182.
"'Neither manufacturer nor pharmacist
has the medical education or knowledge of
the medical history of the patient which
would justify a judicial imposition of a
duty to intrude into the physician-patient
relationship. In deciding whether to use a
prescription drug, the patient relies
primarily on the expertise and judgment of
the physician. Proper weighing of the risks
and benefits of a proposed drug treatment
and determining what facts to tell the
patient
about
the
drug
requires
an
individualized medical judgment based on
knowledge of the patient and his or her
medical
condition.
...
Requiring
the
pharmacist to warn of potential risks
associated with a drug would interject the
pharmacist
into
the
physician-patient
relationship and interfere with ongoing
treatment. We believe that duty, and any
liability arising therefrom, is best left
with the physician.'
"113 Wash. 2d at 711-12, 782 P.2d at 1051.
"On the basis of the foregoing authority and
persuasive authority, we hold as follows.
The
learned-intermediary doctrine forecloses any duty
upon
a
pharmacist
filling
a
physician's
prescription, valid and regular on its face, to warn
the physician's patient, the pharmacist's customer,
or any other ultimate consumer of the risks or
potential side effects of the prescribed medication
except insofar as the prescription orders, or an
applicable statute or regulation expressly requires,
that an instruction or warning be included on the
label of the dispensed medication or be otherwise
23
1091740
d e l i v e r e d.
To
the
ext e n t
that
the
learned-intermediary
doctrine
applies,
foreseeability of injury is eliminated as a basis
for liability upon the pharmacist.
To the extent
that the learned-intermediary doctrine applies, the
duty
to
determine
whether
the
medication
as
prescribed is dangerously defective is owed by the
prescribing physician and not by the pharmacist
filling the prescription."
887 So. 2d 885-86 (some emphasis added).
In Springhill Hospitals, Inc. v. Larrimore, 5 So. 3d 513
(Ala. 2008), this Court rendered a judgment in favor of a
hospital in a case alleging a breach of duty by the hospital's
pharmacist
in
information.
giving
This
Court
the
patient
supported
its
incomplete
holding
dosing
with
following authorities and analysis:
"See Ferguson [v. Williams], 101 N.C. App. [265,] at
272, 399 S.E.2d [389,] at 393 [(1991)] ('A druggist
simply has the duty to act with due, ordinary care
and diligence in compounding and selling drugs. ...
[H]owever, ... if a pharmacist undertakes to advise
a client concerning a medication, the pharmacist is
under a duty to advise correctly.'); Baker [v. Arbor
Drugs, Inc.], 215 Mich. App. [198,] at 205-06, 544
N.W.2d [727,] at 730-31 [(1996)] ('[T]here is no
legal duty on the part of a pharmacist to monitor
and intervene in a customer's reliance on drugs
prescribed by a licensed treating physician. ...')
....
"....
"Further, the standard of care put forward by
the estate would place the physician in a position
24
the
1091740
adjunct to the pharmacist, resulting in exactly the
situation our decisions in Walls and Stone sought to
prevent, asking the pharmacist to intrude himself or
herself into the physician-patient relationship and
requiring the pharmacist to give advice or take
actions that he or she is neither licensed nor
trained to give or take. See Walls, 887 So. 2d at
886 ('"'[The physician's standard of care regarding]
proper dosages of medication is not within the scope
of matters on which nonphysicians are competent
....' '[P]harmacists are not doctors and are not
licensed to prescribe medication because they lack
the
physician's
training
in
diagnosis
and
treatment.'"'
(quoting McKee [v. American Home
Prods. Corp.], 113 Wash. 2d [701,] at 711, 782 P.2d
[1045,] at 1051 [(1989)], quoting in turn Young [v.
Key Pharmaceuticals, Inc.], 112 Wash. 2d [216,] at
230, 770 P.2d [182,] at 190 [(1989)]))." 2
5 So.
3d at 520-21 (emphasis added; footnote omitted).
Nail complains that Publix failed to fulfill a duty to
discuss with her the change her physician had made in the
strength of the Coumadin tablets the physician prescribed for
2
Based on the above-quoted passage from Springhill,
including
the
quoted
excerpts
from
Young
v.
Key
Pharmaceuticals, Inc., 112 Wash. 2d 216, 770 P.2d 182 (1989),
and McKee v. American Home Products Corp., 113 Wash. 2d 701,
782 P.2d 1045 (1989) (cases also discussed in Walls, see
discussion, supra), it might be argued that a pharmacist
simply has no duty to discuss prescription-drug dosages and
risks with a customer and that this lack of duty is not
dependent upon the operation of the learned-intermediary
doctrine. Neither party asks us to examine the issue in this
light or to overrule any cases that treat the learnedintermediary doctrine as apposite in circumstances such as
those presented here. The result I advocate in the present
case does not turn on whether the lack of duty by a pharmacist
is a function of the learned-intermediary doctrine.
25
1091740
her.
Based on my reading of the above-quoted authorities,
however, I conclude that discussing information of this nature
with a patient is part and parcel of the task assigned by
these
authorities
propriety
of
prescription. 3
is
normal
on
to
and
the
risks
physician,
associated
i.e.,
with
discussing
taking
a
the
given
Where the prescription written by a physician
its
face,
the
duty
imposed
by
law
on
the
pharmacist is to accurately fill that prescription and to
notify the customer of any potential interactions between the
prescribed
drug
and
other
drugs
being
supplied
by
the
pharmacist to the customer.
Nonetheless, Nail argues that there was testimony by her
expert that Publix and its pharmacist violated the applicable
standard of care as to Nail.
a duty, however.
Such testimony cannot establish
If a duty exists, an appropriate expert can
testify as to the standard of care that must be observed in
order to fulfill that duty.
An expert cannot, however, create
a duty by testifying that one exists.
3
It is the law that
Publix presented evidence indicating that Nail was
informed by the physician's nurse that the physician had
increased the dosage of her prescribed pills and was
instructing her to take the newly prescribed pills only once
per day, rather than five times per day as previously had been
the case.
26
1091740
imposes duties.
Here, unless the pharmacist assumed some duty
not otherwise imposed by law, there was no duty to advise the
customer of the risks associated with the prescription written
by Nail's physician.
The pharmacist's duty was to fill that
prescription correctly.
Nail does in fact argue that Publix assumed a duty to
notify her of the fact that the dosage of her medicine had
changed.
the
Nail also argues, however, and she testified, that
pharmacist
at
Publix
did
not
say
anything
writing or orally regarding her prescription.
to
her
in
According to
Nail, the pharmacist merely filled the prescription and gave
it to her.
regarding
Whatever internal policies Publix might have had
of
prescription
changes were only that -- internal policies;
there is no
evidence
the
discussion
indicating
that
with
the
customers
fact
of
this
policy
communicated to Nail or that she relied upon it.
was
Baker v.
Arbor Drugs, Inc., 215 Mich. App. 198, 205-06, 544 N.W.2d 727,
730-31 (1996) ("[D]efendant [Arbor Drugs, Inc.] voluntarily
assumed a duty of care when it implemented the Arbortech Plus
[computer] system and then advertised that this system would
detect harmful drug interactions for its customers."
27
(quoted
1091740
with
approval
in
Springhill,
5
So.
3d
at
520)
(emphasis
added)); Cottam v. CVS Pharmacy, 436 Mass. 316, 323, 326, 764
N.E.2d 814,
821, 823 (2002) ("A pharmacy, like any other
person or entity, may voluntarily assume a duty ... to provide
information, advice or warnings to its customers."
"[T]he
scope of the duty voluntarily undertaken by a pharmacy is a
fact-specific inquiry based on the totality of the pharmacy's
communications with the patient and the patient's reasonable
understanding, based on those communications, of what the
pharmacy has undertaken to provide."
(quoted with approval in
Springhill, 5 So. 3d at 520) (emphasis added)).
Likewise, there is no evidence in this case indicating
that Publix or its pharmacist undertook to begin advising Nail
as to her medication but did a misleading or inaccurate job of
it.
Ferguson v. Williams, 101 N.C. App. 265, 272, 399 S.E.2d
389, 393 (1991) ("[I]f a pharmacist undertakes to advise a
client concerning a medication, the pharmacist is under a duty
to advise correctly."
(quoted with approval in Springhill, 5
So. 3d at 520) (emphasis added)).
Again, for her part, Nail
testified and contends that the pharmacist said nothing to her
about the prescription but simply filled the prescription as
28
1091740
written and delivered it to her.
The record and arguments
presented do not, in my view, support a conclusion that Publix
or its pharmacist assumed a duty to Nail of the nature she
asserts.
29
