138 So. 3d 982
Ala.2013Background
- Morgan received a December 19, 2010, refill at a Publix pharmacy that was partially filled with the wrong drug (furosemide mixed into her amlodipine). She ingested pills for ~2 weeks and developed allergic-type and dermatologic symptoms that required treatment and took months to resolve.
- Publix discovered the error, informed Morgan that ~10–12 furosemide pills could not be accounted for, and offered a refill; Morgan transferred the prescription to another pharmacy and sued.
- Morgan sued Publix under the Alabama Medical Liability Act (AMLA), alleging negligent dispensing of the wrong medication.
- At summary judgment, Publix argued Morgan could not meet AMLA’s expert-witness requirement because she failed to timely identify a similarly situated pharmacist expert; the trial court granted summary judgment for Publix on that basis.
- Morgan appealed, arguing the dispensed-wrong-drug claim is so obviously negligent that no expert testimony is required under AMLA exceptions recognized by Alabama caselaw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AMLA requires expert testimony to prove a pharmacist’s dispensing the wrong medication | Morgan: dispensing the wrong drug is so apparent to a layperson that expert testimony is unnecessary | Publix: AMLA ordinarily requires a similarly situated health-care-provider expert; exception shouldn’t be expanded and res ipsa loquitur may not apply | The Court held no expert is needed for claims alleging dispensing the wrong medication because the lack of care is within the comprehension of a layperson |
| Whether res ipsa loquitur must underlie the exception to the expert rule | Morgan: not necessary; the exception may apply independently | Publix: the exception is grounded in res ipsa loquitur and does not apply here | The Court rejected the necessity of res ipsa as a precondition and recognized other situations where expert testimony is unnecessary |
| Whether Morgan’s failure to file a Rule 56(c)(1) opposing-statement forfeits the argument | Publix: procedural defect should bar consideration | Morgan: she raises a legal issue (no expert needed), not a factual dispute; argument supported by authority | The Court considered the legal argument on appeal despite the procedural point |
| Whether summary judgment was proper because Morgan lacked a pharmacist expert | Publix: entitlement to judgment as a matter of law | Morgan: legal exception to expert requirement means material legal issue exists for trial | The Court reversed summary judgment and remanded for further proceedings |
Key Cases Cited
- Cackowski v. Wal-Mart Stores, Inc., 767 So.2d 319 (Ala. 2000) (pharmacists and pharmacies fall within AMLA’s definition of “other health-care providers”)
- Ex parte Rite Aid of Alabama, Inc., 768 So.2d 960 (Ala. 2000) (pharmacy operators are covered by the AMLA)
- Anderson v. Alabama Reference Laboratories, 778 So.2d 806 (Ala. 2000) (general rule that expert testimony is required in medical-malpractice actions, with recognized exceptions)
- Ex parte HealthSouth Corp., 851 So.2d 33 (Ala. 2002) (exceptions to expert-testimony rule where negligence is within common knowledge; list of exceptions not exhaustive)
- Kmart Corp. v. Bassett, 769 So.2d 282 (Ala. 2000) (explains doctrine of res ipsa loquitur elements)
- Holcomb v. Carraway, 945 So.2d 1009 (Ala. 2006) (AMLA requires expert testimony from similarly situated providers ordinarily)
- Giles v. Brookwood Health Servs., Inc., 5 So.3d 533 (Ala. 2008) (elements plaintiff must prove under AMLA: standard, breach, causation)
- Stone v. Smith, Kline & French Labs., 447 So.2d 1301 (Ala. 1984) (prescription drugs are complex and generally dispensed by licensed pharmacists)
- Rosemont, Inc. v. Marshall, 481 So.2d 1126 (Ala. 1985) (recognizing exception where lack of care is apparent to laypersons)