Ferguson v. Williams

374 S.E.2d 438 (1988)

92 N.C. App. 336

Mary T. FERGUSON, Administratrix of the Estate of Charles W. Ferguson, Jr., Deceased, Plaintiff, v. Margaret WILLIAMS and Ring Drug Co., d/b/a Bobbitt's Professional Pharmacy, Defendants.

No. 8821SC377.

Court of Appeals of North Carolina.

December 20, 1988.

*439 Michael R. Nash, Greensboro, for plaintiff, appellant.

Petree Stockton & Robinson by J. Robert Elster and Stephen R. Berlin, Winston-Salem, for defendants, appellees.

HEDRICK, Chief Judge.

Plaintiff argues on appeal that the complaint and amendments state valid claims for relief, and that the motion to dismiss by defendants should not have been granted. We agree. In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the allegations must be viewed as admitted. Warren v. Halifax County, 90 N.C.App. 271, 368 S.E.2d 47 (1988). A complaint should not be dismissed for insufficiency unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Id.

In this case, the complaint alleges negligence on the part of defendant Williams in her duties as a pharmacist. Our Supreme Court in Spry v. Kiser, 179 N.C. 417, 422, 102 S.E. 708, 710 (1920) (quoting 9 Ruling Case Law, at p. 704, Sec. 11), stated:

The legal measure of the duty of druggists towards their patrons, as in all other relations of life, is properly expressed by the phrase "ordinary care," yet it must not be forgotten that it is "ordinary care" with reference to that special and peculiar business, and in determining what degree of prudence, vigilance, and thoughtfulness will fill the requirements of "ordinary care" in compounding medicines and filling prescriptions, it is necessary to consider the poisonous character of many of the drugs with which the apothecary deals, and the grave and fatal consequence which may follow the want of due care. For the people trust not merely their health but their lives to the knowledge, care, and skill of druggists, and in many cases a slight want of care is liable to prove fatal to some one. It is therefore proper and reasonable that the care required shall be proportioned to the danger involved.

*440 Another definition of the standard of care required of a pharmacist, which was stated in Spry is "that ordinary care, in reference to the business of a druggist, must be held to signify the highest practicable degree of care consistent with the reasonable conduct of the business." Id. at 422, 102 S.E. at 710-11 (quoting Willson v. Faxon, 208 N.Y. 108, 101 N.E. 799 (Ann.Cases, 1914, D. 49; 47 L.R.A. (N.S.), 693, and note).

The duties of a pharmacist were set out further by this Court in Batiste v. Home Products Corp., 32 N.C.App. 1, 231 S.E.2d 269, disc. rev. denied, 292 N.C. 466, 233 S.E.2d 921 (1977). In that case, we held that a pharmacist has a duty to act with due, ordinary care and diligence in compounding and selling drugs.

The plaintiff in Batiste was given a prescription by her doctor for the oral contraceptive drug, Ovral. She took the prescription to the defendant pharmacy where she was sold a certain quantity of Ovral in the same condition and composition as originally manufactured. Plaintiff took the prescribed Ovral and consequently suffered a severe stroke. We found that the trial court properly dismissed plaintiff's claim for relief based on the pharmacist's negligence and stated the following:

The prescription was filled as directed. There is no allegation that the product was other than it was supposed to be. There is no allegation that the druggist did any compounding or added to or took from the product as prepared and contained in the sealed container, or that the druggist did anything to change the prescription given him, or that the drug delivered to plaintiff was in any way different than the drug prescribed by plaintiff's physician, or contained any foreign material.

Id. at 9, 231 S.E.2d at 274.

In the case sub judice, plaintiff alleges that "[t]he drug Indocin is contraindicated in patients who suffer from an aspirin allergy, which is the medical condition suffered by plaintiff's intestate." She alleges that plaintiff's intestate told defendant Williams that he was allergic to aspirin, Percodan and penicillin. Plaintiff also alleges that her intestate "sought out and was relying upon the skill, judgment and expertise of defendant Williams with respect to the safety of taking the drug Indocin given the fact that plaintiff's intestate suffered the aforementioned medical condition." Plaintiff further alleges that her intestate was advised by defendant Williams that it was safe to take the drug. This presents a different case for review than does Batiste. According to the allegations in plaintiff's complaint, the defendant pharmacist did more than simply fill the prescription as ordered by the doctor. Even though there is no allegation that the product itself "was other than it was supposed to be," the complaint sufficiently alleged that plaintiff's intestate asked for and was given advice by defendant Williams, and subsequently plaintiff's intestate relied upon that advice in taking the drug. While a pharmacist has only a duty to act with due, ordinary care and diligence, this duty, like all others, expands and contracts with the circumstances. Here, it is alleged that defendant Williams undertook to dispense not only drugs, but advice also. While a pharmacist has no duty to advise absent knowledge of the circumstances, under Batiste, once a pharmacist is alerted to the specific facts and he or she undertakes to advise a customer, the pharmacist then has a duty to advise correctly. We cannot say after examining plaintiff's complaint that it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of her claim. We hold the trial court erred in dismissing plaintiff's complaint pursuant to Rule 12(b)(6) and remand this case to the Clerk of Superior Court of Forsyth County for appropriate action in accordance with this opinion.

REVERSED AND REMANDED.

JOHNSON and PARKER, JJ., concur.