413 S.W.3d 844
Tex. App.2013Background
- Stacey Miller received weekly office-administered injections of compounded injectable lipoic acid from Dr. Tan; after an injection she suffered severe reactions and became blind in both eyes.
- The Millers sued the compounding pharmacy and associated defendants for product defects, failure to warn, and breach of implied warranties; they did not file a TMLA expert report.
- Defendants moved to dismiss under the Texas Medical Liability Act (TMLA), arguing they are "health care providers" (pharmacists) and thus the suit is a health care liability claim subject to chapter 74 expert-report requirements.
- The pharmacy had filled bulk telephone orders from Dr. Tan for 23 vials of injectable lipoic acid for "office use" and did not compound or dispense the drug for any identified individual patient.
- The trial court denied the motion to dismiss; the majority on appeal affirmed, holding defendants were not "dispensing prescription medicines" to an "ultimate user" as required to qualify as pharmacists under the TMLA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants qualify as "pharmacists" (health care providers) under TMLA | Millers: the compounded injectable lipoic acid was a prescription drug dispensed under Dr. Tan's orders and thus defendants are health care providers subject to chapter 74 | Defendants: they compounded and sold bulk drug for office use not pursuant to a prescription for any specific patient, so they were not "dispensing" to an ultimate user and are not TMLA health care providers | Held: No. Under Occupations Code §551.003(16)/(43) defendants did not "dispense" to an ultimate user because the compounding was for bulk office use for the physician, not delivery under a practitioner’s lawful order for a particular patient; therefore not TMLA health care providers and no chapter 74 report required |
Key Cases Cited
- Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (Tex. 2012) (standard of review and TMLA scope)
- Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012) (elements of a health care liability claim)
- TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) (statutory construction rules)
- Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) (broad construction of TMLA to include various health-care related claims)
- Turtle Healthcare Grp., L.L.C. v. Linan, 337 S.W.3d 865 (Tex. 2011) (TMLA applies where duties are inseparable from provision of medical care)