Woodroe Wilson Sellars v. Walgreen Co
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CA-02146-COA
WOODROE WILSON SELLARS, AS A WRONGFUL
DEATH BENEFICIARY OF AND ON BEHALF OF
THE WRONGFUL DEATH BENEFICIARIES OF
NETTIE MAE DILL, DECEASED
APPELLANT
v.
WALGREEN CO., D/B/A WALGREENS, AND JANE
DOE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
11/21/2006
HON. PAUL S. FUNDERBURK
LEE COUNTY CIRCUIT COURT
JAMES D. MOORE
ROBERT K. UPCHURCH
JANELLE M. LOWREY
CIVIL - MEDICAL MALPRACTICE
SUMMARY JUDGMENT GRANTED ON
BEHALF OF WALGREEN
AFFIRMED – 01/08/2008
BEFORE MYERS, P.J., IRVING AND ISHEE, JJ.
IRVING, J., FOR THE COURT:
¶1.
Woodroe Wilson Sellars, on behalf of himself and all of the wrongful death beneficiaries of
Nettie Mae Dill, filed a complaint against Walgreen Co. (Walgreens), alleging that an unknown
Walgreens pharmacist (Jane Doe) negligently caused the death of Sellars’s mother, Dill, when the
pharmacist refused to fill a prescription without payment. Walgreens moved the Lee County Circuit
Court for summary judgment, which the court granted. Aggrieved, Sellars appeals and alleges that
the court erred in granting summary judgment because there were genuine issues of material fact,
that the court erred in granting summary judgment because submitted affidavits set out the applicable
standard of care, and that the court erred in dismissing a medical malpractice claim for failure to file
a certificate of consultation.
¶2.
Finding no error, we affirm.
FACTS
¶3.
On March 8, 2005, Dill was admitted to the hospital and was released with several
prescriptions for various medications. Dill and her family proceeded to a Walgreens during the early
morning hours of March 8 to fill the prescriptions. Dill was covered by Medicaid, but there was
apparently a problem with the computer system at the pharmacy that prevented Walgreens from
processing Dill’s Medicaid. Walgreens told Dill’s family that the prescriptions could be filled if they
were paid for directly. Since Dill and her family were unable to do so, the prescriptions were not
filled. Shortly thereafter, Dill passed away. Sellars alleges that the prescriptions that Walgreens
refused to fill could have saved Dill’s life if they had been given to her. Therefore, Sellars filed a
complaint against Walgreens and the unknown pharmacist who refused to fill the prescriptions,
alleging that Walgreens negligently caused Dill’s death.
¶4.
During discovery, Sellars filed two affidavits. Although both affiants stated that they were
familiar with the standard of care and that Walgreens breached that standard when it refused to fill
Dill’s prescriptions, neither stated exactly what standard of care Walgreens owed to Dill. Sellars
also did not point to any statute or case law that created a legal duty or standard of care on the part
of Walgreens. Accordingly, the court granted summary judgment, finding that “[Sellars] has failed
to cite a Mississippi statute, rule or case which establishes a legal duty on the part of a pharmacist
to fill a prescription.” It is from that order that Sellars appeals.
ANALYSIS AND DISCUSSION OF THE ISSUES
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1. Propriety of Summary Judgment1
¶5.
We apply a de novo standard of review to a lower court’s grant or denial of summary
judgment. Jones v. Fluor Daniel Servs. Corp., 959 So. 2d 1044, 1046 (¶9) (Miss. 2007). We look
at the evidence in the light most favorable to Sellars, the party against whom summary judgment was
granted. Id. We will affirm summary judgment only if there are no genuine issues of material fact
and Walgreens is entitled to summary judgment as a matter of law. Id.; M.R.C.P. 56(c). Because
Sellars is asserting a claim of negligence, to overcome summary judgment he must show a genuine
issue regarding each of the four elements of negligence, which are:
1. A duty, or obligation, recognized by law, requiring [Walgreens] to conform to a
certain standard of conduct . . . .
2. A breach of the duty, a failure on [Walgreens] part to conform to the standard
required.
3. A reasonably close causal connection between the conduct and the resulting injury.
4. Actual loss or damage . . . .
Weathersby Chevrolet Co. v. Redd Pest Control Co., 778 So. 2d 130, 133 (¶8) (Miss. 2001) (quoting
Carpenter v. Nobile, 620 So. 2d 961, 964 (Miss. 1993)). The trial court granted summary judgment
on behalf of Walgreens because Sellars did not show any genuine issue regarding Walgreens duty
and the applicable standard of care.
¶6.
Sellars contends that the court erred in so reasoning because the two affidavits that he
provided set out “the applicable duty to conform to the applicable standard of care for a reasonably
1
We address both Sellars’s first and second issues in this discussion, because the two are
intertwined, and both address the propriety of summary judgment.
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prudent pharmacist under the same circumstances.”2 However, after reviewing the affidavits, we
cannot agree.
¶7.
One affidavit was filed by Donald McKenna, a registered and licensed pharmacist in the state
of Arizona. McKenna stated that he was familiar with the facts of Dill’s case. As to the standard
of care, McKenna offered only conclusory statements with no indication of the actual standard of
care: “That I am familiar with the standard of care of pharmacists with respect to their duties for
filling prescriptions of patients such as Ms. Dill . . . the standard of care which Walgreens . . . should
have followed was to fill Ms. Dill’s prescriptions on the night in question . . . .” However, this is
not a statement of a standard of care; rather, it is simply another way of saying that Walgreens
breached the standard of care. Nothing in McKenna’s affidavit addresses whether Walgreens owed
a legal duty to Dill. Therefore, McKenna’s affidavit was not sufficient to overcome summary
judgment.
¶8.
Sellars’s second affidavit was filed by Dr. Michael Kalafer, a physician in California. Dr.
Kalafer stated that he was familiar with Dill’s case. Dr. Kalafer did not even mention or attempt to
address the applicable standard of care. Instead, Dr. Kalafer opined that Walgreens failure to fill the
prescriptions was the proximate cause of Dill’s death. Dr. Kalafer’s affidavit also is insufficient to
overcome summary judgment.
¶9.
Sellars contends that Walgreens “owed a duty to act as a reasonably prudent pharmacist
would in the same or similar circumstances.” Sellars then contends that the affidavits he provided
“outline the standard for a professional pharmacist.” As we have discussed, the affidavits did not
2
Walgreens contends that we should not even consider Sellars’s contentions regarding the
affidavits because the affidavits were not the basis of the court’s judgment. However, in the interest
of thoroughness, we examine the contents of the affidavits to ensure that nothing in them prohibited
the court’s grant of summary judgment.
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establish that Walgreens owed any duty to Dill, nor did they establish what the applicable standard
of care would be if Walgreens did owe a legal duty to Dill. Sellars has provided no legal authority,
such as a statute or case, to show that Walgreens owed any legal duty to Dill to fill her prescriptions.
¶10.
In the absence of any issue of material fact regarding the legal duty or standard of care owed
by Walgreens, summary judgment was properly granted. Sellars’s contentions to the contrary are
without merit.
2. Certificate of Compliance
¶11.
In his final contention of error, Sellars claims that the court erred in dismissing his claim “for
failure to file a certificate of consultation.” Nothing in the court’s judgment indicates that it granted
summary judgment because Sellars had failed to file a certificate of consultation. Rather, summary
judgment was granted on the grounds already discussed. As such, this issue is irrelevant and without
merit.
¶12. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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