Roberts v. Quick RX Drugs, Inc.

343 Ga.App. 556

807 S.E.2d 476

ROBERTS et al.

v.QUICK RX DRUGS, INC.; and vice versa.

A17A0736

A17A0737

Court of Appeals of Georgia.

October 30, 2017

Kenneth S. Nugent, P.C., Jan P. Cohen ; The Bowen Law Group, Charles J. Bowen, Jr., for Roberts et al. Brennan, Wasden & Painter, Wiley A. Wasden III, W. Richard Dekle, Sandra V. Foster, for Quick Rx Drugs, Inc.

McMillian, Judge.

These cross-appeals arise from injuries that Bryant Roberts and his wife, Lynn Roberts, suffered after Bryant¹ ingested improperly dispensed medication, allegedly causing him to suffer a fall. In Case No. A17A0736, the Robertses assert that the trial court erred in granting summary judgment to Quick Rx Drugs, Inc. ("Quick Rx") on their claims for professional negligence/malpractice and punitive damages. They also assert that the trial court erred in granting summary judgment on an issue that was not presented in the case: whether Bryant's preexisting Alzheimer's disease was caused by the improperly dispensed medication and subsequent fall. In Case No. A17A0737, Quick Rx cross-appeals the trial court's denial of its their motion for summary judgment on the issue of proximate cause.

It is well settled that

[s]ummary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.

In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a), 697 S.E.2d 779 (2010).

Viewed in that light, the evidence shows that Bryant had been diagnosed with a number of conditions including Alzheimer's disease, diabetes, and high blood pressure, and he was prescribed various medicines as part of his treatment. On or about August 26, 2010, when Lynn dropped off two prescriptions for Bryant at Quick Rx's drive-through window, the cashier told her that she had prescriptions ready for pick up. Lynn took the bag handed to her, signed a credit card slip, and drove away. The bag contained two prescription bottles, one containing 1 mg Xanax pills and the other containing 100 mg Zoloft pills, medications that were prescribed and intended for another patient with the last name of Roberts, but not for Bryant.² The prescription bottles were labeled with the name of this other person and not Bryant's name.

The next night, at around 11:00 p.m., Lynn administered 200 mg of Zoloft and 1 mg of Xanax to Bryant. At approximately 4:00 a.m., Lynn heard Bryant calling her name and discovered him on the floor near the front door of their house (the "Fall"). Lynn saw nothing around the area that could have constituted a trip hazard or accounted for Bryant's Fall. Bryant appeared confused and was unable to get up, prompting Lynn to summon an ambulance. At the hospital, Bryant was diagnosed with a hip fracture, which required emergency surgery.

The Robertses filed this action against Quick Rx, asserting claims for professional negligence, simple negligence, malpractice, loss of consortium, and punitive damages. Quick Rx moved for summary judgment on all these claims, and the trial court granted the motion as to the Robertses' claims for professional negligence/malpractice and punitive damages. The trial court also determined that the Robertses had failed to present evidence to raise a jury issue as to whether Bryant's diagnosis of Alzheimer's was caused by the improper medications or the Fall.

Case No. A17A0736

1. In their appeal, the Robertses first assert that the trial court erred in granting summary judgment to Quick Rx on their claims of professional negligence/ malpractice.

[Not] every suit which calls into question the conduct of one who happens to be a medical professional is a medical malpractice action. We must look to the substance of an action against a medical professional in determining whether the action is one for professional or simple negligence. (Citation and punctuation omitted.) Carter v. Cornwell, 338 Ga. App. 662, 666, 791 S.E.2d 447 (2016). The determination of whether a complaint asserts a claim of malpractice presents a question of law for the court. Piedmont Hosp., Inc. v. D. M., 335 Ga. App. 442, 445 (2), 779 S.E.2d 36 (2015). In order to assert a claim of professional malpractice in this case, the Robertses must show (1) the duty owed by the pharmacist to the patient, (2) a breach of that duty based on the failure to exercise the requisite degree of skill and care, and (3) the failure proximately caused the injury sustained. Clay v. Rippy, 299 Ga. App. 224, 227, 682 S.E.2d 330 (2009). A malpractice claim requires expert testimony because

the court and the jury must have a standard measure which they are to use in measuring the acts of the professional in determining whether he exercised a reasonable degree of care and skill in carrying out his professional duties. The proper standard of measurement is to be established by testimony of professionals; for it is a professional question.

Hopkinson v. Labovitz, 231 Ga. App. 557, 559, 499 S.E.2d 338 (1998).

The Robertses rely on the expert testimony of Sherman Weaver, Pharm.D., who testified that the applicable standard of care in this case requires that an offer of pharmaceutical counseling be made every time a patient picks up a prescription and that part of this counseling duty is "to make sure that you have the right patient and the right drug." The standard for pharmaceutical counseling in Georgia is codified at OCGA § 26-4-85. That statute provides, with certain exceptions not applicable here, that

[u]pon receipt of a prescription drug order and following a review of the patient's record, the pharmacist or the pharmacy intern operating under the direct supervision of the pharmacist shall personally offer to discuss matters which will enhance or optimize drug therapy with each patient or caregiver of such a patient.

OCGA § 26-4-85 (b). However, counseling is not required "when the patient or the caregiver of the patient refuses such consultation or counseling." OCGA § 26-4-85 (e). Weaver explained that the standard of care requires that an offer of counseling be made every time medication is dispensed,³ but he acknowledged that it allows a pharmacist to delegate to a pharmacy technician or cashier the responsibility to make that offer.

Although Weaver identified this counseling duty as the applicable standard of care in this case, he conceded that he did not know whether counseling was offered to Lynn or whether any counseling occurred. Further, because the pharmacist was not personally required to offer counseling, he admitted that he could not state that the dispensing pharmacist personally violated the standard. Nevertheless, he opined that the standard had been violated because Lynn left with the wrong prescription and that the pharmacist has responsibility for everything that happens in the pharmacy. He stated that the standard of care required that pharmacy employees take steps, such as confirming an address or a birth date, to ascertain that the medicine is going to the right person. Therefore, he asserted that delivery of the wrong medication amounted to a violation of the pharmaceutical standard of care in and of itself.

Nevertheless, Weaver agreed that he had no information to show a violation by any Quick Rx employee of the standard of care in counting, filling, labeling the prescriptions, or providing printed drug information along with it. Moreover, he had no knowledge of Quick Rx's policies and procedures, which may include policies or procedures addressing the offer of counseling, and thus he does not know whether any policies and procedures were violated. The expert's sole criticism of Quick Rx was that the wrong medication was dispensed and, therefore, something must have gone wrong, although he did not know what. As he explained, "All we know is that an error occurred[.]"

We agree with the trial court that the Robertses cannot assert a claim for medical malpractice based on this testimony. Weaver opined that Quick Rx breached the duty to offer counseling, but the Robertses have not pointed us to any evidence in the record establishing that the Quick Rx employees failed to make the requisite offer. The record is simply silent on that point. See Chamblin v. K–Mart Corp., 272 Ga. App. 240, 244 (1), 612 S.E.2d 25 (2005) (summary judgment for pharmacy affirmed on claim of breach of duty to warn/offer counseling where record contained no evidence establishing that pharmacy employees did not make an offer to counsel). Therefore, the expert could only point to the fact that the cashier gave Lynn medicine intended for someone else. Although he asserted that the cited standard of care includes the obligation to take certain steps to ensure that the right customer is receiving the right medicine, the methods he cited for accomplishing this objective do not require professional expertise.

Only where the allegations of negligence against the professional involve the exercise of professional skill and judgment within the professional's area of expertise does the claim sound in professional negligence. Bardo v. Liss, 273 Ga. App. 103, 104 (1), 614 S.E.2d 101 (2005). For example, in medical malpractice actions,

[t]he resolution of whether an act or omission sounds in simple negligence or medical malpractice depends on whether the conduct, even if supervisory or administrative, involved a medical judgment. "Medical judgments" are decisions which normally require the evaluation of the medical condition of a particular patient and, therefore, the application of professional knowledge, skill, and experience.

(Citation omitted.) Carter, 338 Ga. App. at 663, 791 S.E.2d 447.

Therefore, "there are instances in which actions performed by or under the supervision of a professional are nevertheless not professional...