Moore Ex Rel. Moore v. Memorial Hosp. of GulfportMoore Ex Rel. Moore v. Memorial Hosp. of Gulfport
William Wyatt Simmons, William M. Rainey, Roland F. Samson, III, Matthew Forte Powers, Gulfport, attorneys for appellees.
EN BANC.
ON MOTION FOR REHEARING
WALLER, J., for the Court.
¶ 1. The motion for rehearing filed by Charlisia Moore and her parents, Daisy and Charles Moore, is denied.
¶ 2. The Court grants its sua sponte motion for rehearing, the prior opinion is withdrawn, and these opinions are substituted in its place.
¶ 3. Daisy and Charles Moore, parents of the minor child Charlisia Moore, brought this civil action against the physicians who treated Daisy during her pregnancy with Charlisia, the hospital which provided care to Daisy during her pregnancy and delivery and to Charlisia after she was delivered, and the pharmacy which dispensed certain medications to Daisy during her pregnancy. They filed this appeal from the grant of summary judgment to the hospital and to the pharmacy. We affirm the circuit court‘s grant of summary judgment to the pharmacy. We rеverse and remand the grant of summary judgment to the hospital.
¶ 4. While pregnant with Charlisia, Daisy was under the care of Maria Moman, M.D. Daisy had a history of labile hypertension and anemia. Early in her pregnancy, as the result of the hypertension, Daisy was hospitalized at Memorial Hospital in Gulfport, Mississippi, from February 12 to February 24, 1997. During Daisy‘s hospitalization, Dr. Moman consulted with Joseph L. Faison, M. D., who prescribed Aldomet, 250 mg every eight hours, along with vitamins and iron. After her discharge, Daisy had her prescription for Aldomet filled by the Winn-Dixie Pharmacy in Long Beach, Mississipрi.
¶ 5. During her pregnancy, the dosage of Aldomet was adjusted by Dr. Moman. On March 6, 1997, Dr. Moman increased the dosage to 500 mg every eight hours. On April 17, 1997, Dr. Moman increased the dosage to 500 mg six times a day.
¶ 6. On May 19, 1997, Dr. Faison prescribed Diovan, 80 mg once per day. A notation in her medical records dated May 2, 1997, indicates that Daisy was taking 100 mg of Diovan once a day, and on June 12, 1997, a prescription was filled for Diovan, 80 mg, once a day. On July 3, 1997, the date of Charlisia‘s delivery, the medical records show that Daisy was taking 80 mg of Diovan each day. The Winn-Dixie Pharmacy, owned аnd operated by Winn-Dixie Louisiana, Inc., filled the Diovan prescription for Daisy.
¶ 7. Charlisia‘s delivery was unremarkable, but on July 7, 1997, she became cyanotic1 and had an episode of apnea.2 She was admitted to Memorial Hospital with a diagnosis of apnea/rule out gastroesophageal reflux. Charlisia developed respiratory distress, went into cardiopulmonary arrest, was noted to be hyperkalemic,3 hypoatremic4 and hypocalcemic,5 and was transferred to the Neonatal Intensive Care Unit. She was later transferred to Tulane Memorial Hospital with an admitting diagnosis of acute renal failure. Discharge diagnosis was end stage renal disease, secondary to maternal treatment with angiotensin II receptor blocker for hypertension during third trimester of pregnancy.
¶ 8. Charlisia now has a diagnosis of end stage kidney failure and needs a kidney transplant. She was on dialysis until January, 1998. She has hypertension and is not growing at a normal rate. She cannot eat any solids because she has a hyperactive gag reflex.
¶ 9. The Moores allege that Diovan caused Charlisia‘s kidney failure and that Dr. Moman and Dr. Faison were negligent in their carе of Daisy by prescribing a drug which is known to cause renal failure in exposed fetuses. The Moores allege that Memorial Hospital was negligent in its care and treatment of Daisy and Charlisia by failing to monitor adequately Charlisia after her delivery and by failing to be aware of any potential danger caused by Daisy‘s ingestion of the Diovan. Finally, they allege that Winn-Dixie was negligent by selling a drug which was contraindicated for pregnant women.
¶ 10. Winn-Dixie filed a motion for summary judgment, stating that it accurately filled the medication in accordance with valid prescriptions from her treating physicians, that, pursuant to the
¶ 11. The circuit court granted Winn-Dixie‘s motion for summary judgment, finding that (1) actionable negligence cannot exist in the absence of a legal duty; (2) the learned intermediary doctrine has been adopted by this Court; (3) the learned intermediary doctrine has been extended to pharmacists by an overwhelming majority of states; (4) a pharmacist does not have a legal duty to question the judgment made by a prescribing physician; (5) Winn-Dixie accurately filled the prescriptions at issue; (6) alleged violations of the State Board of Pharmacy‘s internal regulations did not give rise to an independent cause of action for damages and the regulations did not define the legal duty of care of a pharmacist; (7) Winn Dixie did not recommend a medication to Daisy, substitute a drug comparable to the one prescribed, or observe an excessive dosage or potency of the drug on the face of the prescription; and (8) the affidavit of the Moore‘s expert pharmacist did not create an issue of fact.
¶ 12. Memorial Hospital also filed a motion for summary judgment, claiming that the claims against it were barred by the one-year statute of limitations (
¶ 13. The circuit court granted Memorial Hospital‘s motion for summary judgment, finding that Memorial Hospital was a “governmental entity” as set forth in
¶ 14. The summary judgments for Winn-Dixie and Memorial Hospital were
STANDARD OF REVIEW
¶ 15. The standard for reviewing the granting or denying of summary judgment is the same standard as is employed by a trial сourt under Miss. R. Civ. P. 56(c). We conduct a de novo review of orders granting or denying summary judgment and examine all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, thе non-movant would be given the benefit of the doubt. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996).
¶ 16. We will not reverse the trial court‘s decision unless it appears that triable issues of fact remain when the facts are viewed in the light most favorable to the nonmoving party. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (Miss.1999). The summary judgment motion is the only pretrial motion which allows the Court to “go behind the pleadings” and consider evidence such as admissions, answers to interrogatories, depositions, and affidavits. Lattimore v. City of Laurel, 735 So.2d 400, 402 (Miss.1999). If this examination indicates there is no genuine issue of material fact, the moving party is entitled to a judgment as a matter of law. Id. (citing Newell v. Hinton, 556 So.2d 1037, 1041-42 (Miss.1990)).
¶ 17. While the motion for summary judgment is designed to expose “sham” claims and defenses, it should not be used to circumvent a trial on the merits where there are genuine issues of material fact. M.R.C.P. 56 cmt.; Lattimore, 735 So.2d at 401. The party opposing the motion must be diligent and may not rest upon allegations or denials in the pleadings but must by allegations or denials set forth specific facts showing that there are indeed genuine issues for trial. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997). In other words, “when a motion for summary judgment is filed, the nonmoving party `must rebut by producing significant probative evidence showing that there are indeed genuine issues for trial.‘” Foster v. Noel, 715 So.2d 174, 180 (Miss. 1998).
DISCUSSION
I. WHETHER GRANT OF SUMMARY JUDGMENT TO WINNDIXIE WAS APPROPRIATE.
¶ 18. The Moores claim that the circuit court‘s characterization of a pharmacist‘s scope of duty (that a pharmacist must only provide the right drug in the correct dosage) was so narrow that it did not permit consideration of whether the pharmacist‘s conduct was reasonable under circumstances where certain information which contraindicated the dispensation of the medication was known or reasonably should have been known by the pharmacist. They claim that Winn-Dixie knew or should have known, that Daisy was рregnant and that Diovan should not have been dispensed to a pregnant woman and that it should have taken steps to insure that an improper combination of medications did not result from Daisy‘s various prescriptions.
¶ 20. In a case similar to the one at bar, the United States District Court for the Eastern District of Pennsylvania found that parents of a child who was born with deformities as the result of a medication taken by its mother during pregnancy did not have a cause of action against the pharmacist who dispensed the drug because, under the learned intermediary doctrine, the pharmacist had no legal duty to warn the mother of hazards associated with taking a certain medication during pregnancy. Ramirez v. Richardson-Merrell, Inc., 628 F.Supp. 85, 87-88 (E.D.Pa. 1986). The court reasoned:
Under Pennsylvania law, where the drug in issue is available only by prescription, the warning required is not to the general public or to the patient, but to the prescribing physician. The manufacturer of the drug satisfies any duty it has by providing proper warnings to the prescribing physicians. It would be illogical and unreasonable to impose a greater duty on the pharmacist or druggist who prоperly fills the prescription than is imposed on the manufacturer. To impose a duty to warn on the pharmacist would be to place the pharmacist between the physician, who having prescribed the drug presumably knows the patient‘s present condition as well as his or her complete medical history, and the patient. Such interference in the patient-physician relationship can only do more harm than good. The point that must be emphasized is that the drug sold by defendant Queen Pharmacy was a prescription drug. The wеighing of benefits of medication against potential dangers that are associated with it, which is the basis of the prescription drug system, requires an individualized medical judgment which only the physician can provide.
Id. at 87-88. See also Coyle v. Richardson-Merrell, Inc., 526 Pa. 208, 584 A.2d 1383, 1385-86 (1991) (The physician has the duty to be fully aware of (1) the characteristics of the drug he is prescribing, (2) the amount of the drug which can be safely administered, and (3) the different medications the patient is taking. The physician also has the duty to advise the patient of any dangers or side effects associated with the use of the drug.).
¶ 21. Other courts have hеld that the learned intermediary doctrine should be extended to pharmacists and that pharmacists owe no legal duty to warn in the context of prescription medication: See Mazur v. Merck & Co., 964 F.2d 1348, 1356 (3d Cir.1992) (applying Pennsylvania law) (The physician has superior knowledge and is required to balance the risks of the drug against its utility in light of the patient‘s medical history); Johnson v. Walgreen Co., 675 So.2d 1036, 1037 (Fla. Dist.Ct.App.1996) (affirming dismissal of complaint on the grounds that a Florida pharmacist‘s sole duty is to accurately and properly fill all lawful prescriptions presented); Walker v. Jack Eckerd Corp., 209 Ga.App. 517, 434 S.E.2d 63, 67 (1993) (Pharmacist has no duty to warn customer or notify physician that drug is being prescribed in dangerous amounts, that customer is being overmedicated, or that various drugs in their prescribed quantities
¶ 22. An exception to the learned intermediary doctrine, as applied to pharmacists, exists where it was undisputed that a plaintiff had informed the pharmacy of health problems which contraindicated the use of the drug in question. Happel v. Wal-Mart Stores, Inc., 316 Ill.App.3d 621, 250 Ill.Dec. 28, 737 N.E.2d 650 (2000); Hand v. Krakowski, 89 A.D.2d 650, 453 N.Y.S.2d 121 (N.Y.App.Div.1982). In the case at bar, there is absоlutely no evidence that Winn-Dixie‘s dispensing pharmacist knew of Daisy‘s pregnancy when the prescription for Diovan was filled.
¶ 23. Another exception exists where pharmacists fill prescriptions in quantities inconsistent with the recommended dosage guidelines. Lasley v. Shrake‘s Country Club Pharmacy, Inc., 179 Ariz. 583, 880 P.2d 1129 (1994); Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514 (Ind.1994); Horner v. Spalitto, 1 S.W.3d 519 (Mo.Ct. App.1999); Riff v. Morgan Pharmacy, 353 Pa.Super. 21, 508 A.2d 1247 (1986); Dooley v. Everett, 805 S.W.2d 380 (Tenn.Ct.App. 1990). Here, however, it is undisputed that the dosage prescribed for the Diovan was not excessive and that Winn-Dixie properly filled the prescription.
¶ 24. The Moores claim that summary judgment for Winn Dixie was inappropriate because it violated the State Board of Pharmacy‘s internal regulations. The State Board of Pharmacy is an administrative agency which governs the conduct of pharmacies within the State. See
¶ 25. We therefore extend the learned intermediary doctrine to pharmacists and affirm the grant of summary judgment to Winn-Dixie.
II. WHETHER GRANT OF SUMMARY JUDGMENT TO MEMORIAL HOSPITAL WAS APPROPRIATE.
¶ 26. The circuit court granted summary judgment to Memorial Hospital on the basis that the Moores failed to file their complaint against Memorial Hospital within the MTCA‘s one-year statute of limitations. The Moores do not dispute that the MTCA applies to civil actions brought against Memorial Hospital.
¶ 27. The pertinent dates are as follows:
| 7/8/97 | Charlisia is discharged from Memorial Hospital and transferred to Tulane. |
| 8/16/97 | The attending pediatric nephrologist at Tulane advised Daisy that, in his opiniоn, Diovan caused Charlisia‘s renal failure and discussed “a right to litigation” with Daisy. Daisy contacted an attorney. |
| 9/29/97 | The Moores submitted a first request for medical records from Memorial Hospital. |
| 11/12/97 | The Moores submitted a second request for medical records from Memorial Hospital. |
| 6/8/98 | After five more requests for medical records, the Moores received an abstract of the medical records from Memorial Hospital. |
| 8/31/98 | The Moores’ expert informs them of their cause of action against Memorial Hospital. |
| 12/31/98 | The Moores file a complaint against Memorial Hospital, Dr. Faison, Dr. Moman and Winn-Dixie. |
| 5/20/99 | Memorial Hospital is dismissed on the basis that the Moores failed to provide a notice of claim to Memorial Hospital as required by statute. |
| 6/9/99 | Memorial Hospital receives a statutory notice of claim from the Moores. |
| 12/16/99 | The Moores filed their First Amended Complaint, naming Memorial Hospital as a defendant. |
A. Failure to Send a Timely Notice of Claim
¶ 28. Memorial Hospital contends that summary judgment is appropriate because the Moores failed to send a timely notice of clаim. If the Moores’ cause of action against Memorial Hospital accrued on August 31, 1998, the notice of claim should have been sent prior to August 31, 1999. The Moores sent the notice of claim on June 9, 1999. If the cause of action accrued on August 31, 1998, it was therefore timely sent.
B. Failure to File Timely the Complaint after Voluntary Dismissal
¶ 29. Memorial Hospital argues that, even if the notice of claim was timely filed, the Moores’ claims against it are barred by the one-year statute of limitations. If the Moores’ cause of action against Memоrial Hospital accrued on August 31, 1998, under the MTCA one-year statute of limitations, they had until August 31, 1999, to file their complaint against Memorial Hospital. The first complaint was filed on December 31, 1998, but then the complaint was voluntarily dismissed against Memorial Hospital on May 20, 1999. Memorial Hospital received a statutory notice of claim from the Moores on June 9, 1999. Under
C. The Discovery Rule
¶ 30. The Moores claim that the one-year statute of limitations9 did not begin to run until August 31, 1998, when their expert informed them of their cause of action against Memorial Hospital. They assert that they were diligent in seeking an expert opinion, but that the delay in acquiring the medical records from Memorial Hospital prevented the “discovery” of their cause of action against Memorial Hospital within the year immediately subsequent to Charlisia‘s birth and the Moores’ learning that Diovan caused Charlisia‘s renal failure.
¶ 31. We have held that the discovery rule applies to the MTCA‘s statute of limitations. Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 204 (Miss. 1999). The discovery rule provides a tolling of the running of a statute of limitations until a plaintiff “should have reasonably known of some negligent conduct, even if the plaintiff does not know with absolute certainty that the conduct was legally negligent.” Sarris v. Smith, 782 So.2d 721, 725 (Miss.2001). Expressed another way, “the operative time [for the running of the statute of limitations] is when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.” Smith v. Sanders, 485 So.2d 1051, 1052 (Miss. 1986) (quoted with approval in Sarris, 782 So.2d at 723).
¶ 32. The circuit court held that the Moores’ complaint was untimely filed because it calculated the time in which to file the complaint by using the old 95-day period for filing a notice of claim instead of the amendment‘s 120-day period. It appears from the record that Daisy should
CONCLUSION
¶ 33. We affirm the Circuit Court of Harrison County‘s grant of summary judgment to Winn-Dixie Louisiana, Inc. We reverse the circuit court‘s grant of summary judgment to Memorial Hospital and remand for further proceedings consistent with this opinion.
¶ 34. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
PITTMAN, C.J., SMITH, P.J., COBB, EASLEY, CARLSON, AND GRAVES, JJ., CONCUR. McRAE, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J.
McRAE, P.J., specially concurring:
¶ 35. While I agree with this Court‘s decision on the motion for rehearing to affirm the grant of summary judgment to Winn-Dixie, I disagree with that portion of the majority opinion which extends the learned intermediary doctrine to pharmacists and grants them immunity if a doctor prescribes a drug for a patient.
¶ 36. We have never extended the learned intermediary doctrine between two professionals, and we should not start now. The doctrine is intended to relieve a manufacturer of the duty to notify consumers and to protect it from liability when there is an intervening expert, i.e. a pharmacist or a doctor. Wyeth Labs., Inc. v. Fortenberry, 530 So.2d 688 (Miss.1988). In those situations, the duty is on the intervening professional. The same should not apply between a doctor and a pharmacist. Pharmacists have superior knowledge and training in pharmacology and that expertise and the duties that accompany it should be recognized and not imputed to doctors. It is true that a doctor is best situated to know the medical needs of his or her patient(s), but the reactions and interactions of drugs are best left to other experts.
¶ 37. Pharmacists do not simply count pills. They are the experts in pharmacology, unlike doctors who only know perhaps a handful of drugs. Pharmacists go to school for many years to learn about drugs and their reactions to other drugs; doctors’ exposure is not nearly as in depth or intense as they take only one or two courses. The pharmacist is trained to know how different drugs should be used to treat patients, and how they affect the human body and react with each other. A doctor‘s basic knowledge of drugs comes from pharmaceutical representatives. A doctor usually checks with the friendly pharmacist about drugs and their reactions. Suits against pharmaceutical companies primarily will necessitate the bringing in of the doctor and not the pharmacist. This is wrong.
¶ 38. Although pharmacists, like other professionals, should be given some degree of autonomy in order to work effectively,
¶ 39. I agree with the results reached in this case. However, in order to prevent this injustice to others in the medical community, the learned intermediary doctrine should not be applied to pharmacists.
DIAZ, J., JOINS THIS OPINION.