Lead Opinion
OPINION
I. INTRODUCTION
The primary issue we address in this appeal is whether a pharmacist’s act — of filling a bulk phone order placed by a doctor for over twenty 30-milliliter vials of an injectable form of the antioxidant supplement lipoic acid for use in the doctor’s office — constitutes dispensing a prescription medicine as required for the pharmacist to qualify as a health care provider under the Texas Medical Liability Act (TMLA). See Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(12)(A)(iv), (22) (West Supp.2012). Because we hold that the answer to this question is no, we will affirm the trial court’s order denying Appellants’
II. Factual and PROCEDURAL Background
Stacey was diagnosed with Hepatitis C. To treat Stacey’s previously diagnosed Hepatitis C, Dr. Ricardo B. Tan began administering weekly injections of the antioxidant supplement lipoic acid. After nine weeks of treatment, Stacey began an episode of violent nausea and vomiting when Dr. Tan administered an injection of lipoic acid to Stacey on December 5, 2011. She was transported to the hospital where, according to her pleadings, she experienced “violent nausea, vomiting, tachycar
Stacey and her husband Randy filed suit against Appellants alleging that Appellants had manufactured, distributed, and sold a defective product — injectable lipoic acid; failed to give physicians, as learned intermediaries, adequate and proper warning with respect to the risks associated with the use of lipoic acid; and breached implied warranties in the design, manufacture, inspection, marketing, and distribution of lipoic acid because it was not reasonably suited for the purposes and use for which it was intended and was not of merchantable quality. The Millers did not file an expert report under the TMLA. Appellants filed a motion to dismiss, claiming that the Millers’ suit against them was a health care liability claim governed by the TMLA. The Millers filed a response, attaching numerous documents generated through the investigation launched by the Texas Department of State Health Services (TDSHS) concerning Appellants’ manufacture of the injectable lipoic acid and Stacey’s injuries. After a hearing, the trial court signed an order denying Appellants’ motion to dismiss; Appellants perfected this appeal.
III. STANDARD OF REVIEW AND RULES of Statutory Construction
The question of whether a cause of action is a health care liability claim under the TMLA is one of law, which we review de novo. See Tex. W. Oaks Hosp., LP v. Williams,
IV. Appellants do not Meet the TMLA’s Definition of Pharmacist, So Appellants are Not Health Care Providers
The TMLA defines a health care liability claim as
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly' related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.
Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13). According to this definition, a health care liability claim has three elements: (1) the defendant is a health care provider or physician; (2) the claimant’s cause of action is for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health' care, or safety or professional or administrative services directly related to health care; and (3) the defendant’s alleged departure from accepted standards proximately caused the claimant’s injury or death. Loaisiga v. Cerda,
The first element is at issue here. The definition of a health care provider includes a pharmacist. Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(12)(A)(iv), (22). Under the TMLA, a pharmacist is then further, more narrowly defined as
one licensed under Chapter 551, Occupations Code, who, for the purposes of this chapter, performs those activities limited to the dispensing of prescription medicines which result in health care liability claims and does not include any other cause of action that may exist at common law against them, including but not limited to causes of action for the sale of mishandled or defective products.
Id. § 74.001(a)(22).
The Millers attached numerous documents to their response to Appellants’ motion to dismiss. The documents attached to the Millers’ response to Appellants’ motion to dismiss contain the information set forth below:
• Injectable lipoic acid has not. been granted marketing approval pursuant to a U.S. Food and Drug Administration New Drug Application or Abbreviated New Drug Application nor is it exempt from this requirement.
• Dr. Tan placed a “bulk” telephone order with Appellants on November 29, 2011 and on December 2, 2011 for an aggregate of twenty-three 30-milliliter vials of injectable lipoic acid for “office use.”
• Dr. Tan did not complete or call in a prescription for, nor did Appellants fill a prescription for, Stacey Miller or for any other specific individual user for injecta-ble lipoic acid.
• Under Texas law, when a pharmacy distributes for office, use and does not receive a prescription drug order for a specific patient, the pharmacy is “no longer exempt from being a manufacturer per Texas Food, Drug, and Cosmetic Act § 431.4014-a.”3
*848 • Lipoic acid is compounded by mixing lipoic acid, sodium hydroxide, sterile water, and benzyl alcohol.
Appellants claim that they are health care providers and that,' accordingly, the Millers were required to file an expert report under the TMLA. As set forth above, the TMLA’s definition of a pharmacist is
one licensed under Chapter 551, Occupations Code, who, for the purposes of this chapter, performs those activities limited to the dispensing of prescription medicines which result in health care liability claims and does not include any other cause of action that may exist at common law against them, including but not limited to causes of action for the sale of mishandled or defective products.
Id. (emphasis added). So, the question here is whether Appellants’ compounding of an antioxidant supplement — injectable lipoic acid, Appellants’ sale of that drug in bulk to a -physician for office use to be injected into unknown users, and Appellants’ sale of that drug in bulk in the absence of any prescription drug order for any specific person constitutes “dispensing prescription medicine” so that a pharmacist engaged in such activity is a health care provider under the TMLA.
Although the TMLA does not define the word “dispensing” that is used in its definition of a “pharmacist,” chapter 551 of the Texas Occupations Code— known as the Texas Pharmacy Act — defines “dispense” to mean “to prepare, package, compound, or label, in the course of professional practice, a prescription drug or device for delivery to an ultimate user or the user’s agent under a practitioner’s lawful order.”
Utilizing the Texas Pharmacy Act’s definition of “dispense,” a pharmacist “dispenses” a drug when he or she prepares, packages, compounds, or labels in the course of professional practice a prescription drug or device for delivery to an ultimate user or the user’s agent under a practitioner’s lawful order. Tex. Oce.Code Ann. § 551.003(16). An “ultimate user” is defined in the Texas Pharmacy Act, in pertinent part, as a “person who obtains or possesses a prescription drug or device for the person’s own use.” Id. § 551.003(43).
Here, it is undisputed that Appellants did not compound the injectable li-poic acid for delivery to an ultimate user, i.e.., for delivery to Stacey Miller or any other specific person. Appellants concede as much -in their motion to dismiss and in their appellate brief, .arguing that they compounded the injectable lipoic acid for delivery to Dr. Tan for his office use based on Dr. Tan’s bulk phone order. Dr. Tan was not an ultimate user because he did not obtain the injectable lipoic acid to use on himself. See id. Consequently, as a matter of law, because Appellants did not compound the lipoic acid for delivery to an ultimate user, they were not “dispensing” a prescription drug. See id. § 551.003(16) (defining dispensing). Because Appellants were not “dispensing,” as that term is defined in the Texas Pharmacy Act, they do not meet the limited definition of a “pharmacist” under the TMLA.
And because Appellants in this case do not fall within the TMLA’s limited definition of “pharmacist,” they are — by this limited definition — specifically excluded from the TMLA’s statutory list of health care providers. See id. § 74.001(a)(12); TGS-NOPEC,
Y. Response to the Dissenting Opinion
The dissenting opinion muddles the issues
The majority’s interpretation would deny the many pharmacists who compound drugs for individuals that must be administered by nurses or physicians, intravenously or otherwise, of the protections afforded to them by the TMLA simply because the pharmacist did not personally deliver the prescription to the recipient.
Dissenting Op. at 854 (emphasis added). And further states:
According to the majority’s interpretation, the difference between holding a pharmacist liable under the TMLA or ordinary tort law could be whether a nurse or physician administered the drug as opposed to the pharmacist directly delivering the prescription to the patient.
Id. at 17 (emphasis added). These statements in the dissenting opinion are wrong. Under our analysis set forth above, a pharmacist who is compounding prescription drugs for individuals does fall within the TMLA’s statutory definition of a pharmacist. See Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(22) (defining pharmacist as “one licensed under Chapter 551, Occupations Code, who, for the purposes of this chapter, performs those activities limited to the dispensing of prescription medicines”); Tex. Occ.Code Ann. § 551.003(16) (defining “dispens[ing]” as “preparfing], packaging], compoundfing], or labelling] in the course of professional practice, a prescription drug or device for delivery to
The dissenting opinion would hold — contrary to the controlling statutory definitions — that a pharmacist falls within the TMLA’s definition of pharmacist when he or she fills a telephone order for large quantities of a prescription drug for office-use administration to persons to be determined at a later date. Cf. Tex. Occ.Code Ann. § 551.003(16), (43); see also 21 C.F.R. § 1306.04(b) (2005) (specifically prohibiting a pharmacist from filling a bulk order for a controlled substance for office use by the doctor by providing that “[a] prescription may not be issued in order for an individual practitioner • to obtain controlled substances for supplying the individual practitioner for the purpose of general dispensing to patients”); Tex. Health & Safety Code Ann. § 481.002(41) (West 2010) (defining “prescription” as “an order by a practitioner to a pharmacist for a controlled substance for a particular patient”) (emphasis added). Appellants did not compound the lipoic acid pursuant to a prescription for Stacey or for delivery to Stacey — the ultimate user. See Tex. Occ. Code Ann. § 551.003(16), (43). Because the lipoic acid was ordered in bulk, not prescribed for any particular person, Appellants could not be compounding the li-poic acid for any particular person, and Dr. Tan cannot be the “agent” of some yet to be determined user. See id. § 551.003(16), (43). Appellants fail to meet the TMLA’s definition of pharmacist either because (if lipoic acid is a prescription drug) they were not dispensing lipoic acid pursuant to a practitioner’s lawful order of the drug for any-specific person or because (if lipoic acid is not a prescription drug) only pharmacists who, for the purposes of the TMLA are performing . “those activities limited' to the dispensing of prescription medicines” fall within the TMLA’s definition of “pharmacist.” See Tex. Occ.Code Ann. § 551.003(16), (43); Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(22).
The dissenting opinion contains nice policy arguments, a good legislative history of the TMLA, and lots of cases claiming to explain current trends in the interpreta
VI. Conclusion
Having overruled Appellants’ sole issue, we affirm the trial court’s order denying Appellants’ motion to dismiss.
LIVINGSTON, C.J., filed a dissenting opinion.
Notes
. Appellants are Randol Mill Pharmacy; KVG Enterprises, Inc.; Gary G. Daley; John Wayne Bailey; James Robert Forsythe; Kevin Lynn Heide; Julie Knowlton Lubbert; and Cara Morrell.
. Appellants did not assert any objection to the trial court's consideration of these docu-merits in connection with the trial court's ruling on their motion to dismiss.
. The Establishment Inspection Report issued
. In fact, Appellants urge-us to apply definitions — other than the definition of "dispense” — from the Texas Pharmacy Act in our construction of the definition of "pharmacist” set forth in the TMLA.
. We need not and do not decide whether lipoic acid is a prescription drug. If it is not, Appellants do not fall within the TMLA’s definition of "pharmacist” because only a pharmacist dispensing prescription medications falls within the TMLA's definition of "pharmacist,” and if it is — as Appellants contend— then Appellants still do not fall within the TMLA’s definition of "pharmacist" because, as analyzed above, under the facts presented here they were not "dispensing” as the act of dispensing requires the existence of a practitioner’s lawful order of the prescription drug for a specific person's use. See Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(22) (defining pharmacist);- Tex. Occ.Code Ann. § 551.003(16), (43) (defining dispensing and ultimate user, respectively).
. The cases cited by Appellants are inappo-site. The cases cited by Appellants do not involve the first element of a health care liability claim — whether the defendant is a health care provider; instead, they involve the second prong — whether the claimant's cause of action is for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care. See, e.g., Ruiz v. Walgreen Co.,
. Having overruled Appellants' sole issue on the ground that Appellants in this case are not health care providers under the TMLA, we need not address Appellants’ other arguments concerning the nature of the Millers’ claims; if Appellants are not health care providers, the Millers’ claims are not health care liability claims. See, e.g., Boulder Creek Acad. v. Kline,
.For example, the dissenting opinion notes that a pharmacist may compound a "drug” (defined differently than a "prescription drug”) for a practitioner's office use, but it fails to recognize that the TMLA's definition of "pharmacist” applies only to pharmacists who are dispensing or compounding prescription drugs and that a prescription drug by definition requires a prescription, that is, a practitioner’s lawful order of the prescription drug for a specific person’s use. See Tex. Occ.Code Ann. § 5Ó2.152 (authorizing delivery of compounded drug — but not prescription drug — to practitioner for office use); Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(22) (defining pharmacist); Tex. Occ.Code Ann. § 551.003(16), (18), (36), (43) (dehning dispensing, drug, prescription drug, and ultimate user, respectively).
. During oral argument, the first question asked of Appellants' counsel was, "This [lipoic acid] was prepared for Dr. Tan, it wasn't prepared specifically for the plaintiff?” Appellants’ counsel answered, "That is true.” Later, counsel was asked, "The record, it sounds like at least, does not contain a written prescription, but there was a telephonic order from the doctor’s office to the pharmacy.” And she responded, "Absolutely.” She was asked, "And was that telephone order in bulk for his patients or was it specifically stated that it was addressed for these plaintiffs or this plaintiff?" She answered, "No, it was for office use. They had provided it in the past. He administers it to a number of patients.”
Dissenting Opinion
DISSENTING OPINION
I respectfully dissent from the majority’s opinion because I believe that the claims urged by Stacey and Randy Miller are health care liability claims that require an expert’s report under chapter 74. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (West 2011). I further believe that the majority adopts an overly strict interpretation of the Texas Medical Liability Act (TMLA) that both unnecessarily heightens the already rigorous statutory requirements pertaining to pharmacists and runs contrary to the trend of case law interpreting the TMLA.
The Texas Legislature, hoping to curtail the number of frivolous lawsuits and preemptively remedy an impending rise in health care costs, intensified the procedural requirements necessary to sustain a cause of action against a health care provider when it passed the TMLA. See Scoresby v. Santillan,
The TMLA’s Text
The TMLA provides that a health care liability claim is
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant.
Tex. Civ. Prac. & Rem.Code Ann. § 74.001(13) (West Supp.2012). The TMLA supplies a general definition for a “[hjealth care provider” that includes a pharmacist and any employee, independent contractor, or agent of a pharmacist acting “in the course and scope of the employment or contractual relationship.” Id. § 74.001(12)(A)(iv), (B)(ii). Additionally, the TMLA generally defines “[h]ealth
“Pharmacist” means one licensed under Chapter 551, Occupations Code, who, for the purposes of this chapter, performs those activities limited to the dispensing of prescription medicines which result in health care liability claims and does not include any other cause of action that may exist at common law against them, including but not limited to causes of action for the sale of mishandled or defective products.
Id. § 74.001(22). Therefore, according to this stricter standard, a health care liability claim may be sustained only against a pharmacist who dispenses prescription medications that result in á health care liability claim.
The issue here hinges on whether appellants qualify as “health care providers” under the TMLA, which requires that they satisfy the TMLA’s criterion of “dispensing ... prescription medications.” The Texas Pharmacy Act (TPA) provides a technical definition for the term “dispense” as it pertains to pharmacists:
“Dispense” means to prepare, package, compound, or label, in the course of professional practice, a prescription drug or device for delivery to an ultimate user or the user’s agent under a practitioner’s lawful order.
Tex. Occ.Code Ann, § 551.003(16) (West 2012).
Both the majority and appellees contend that appellants do not satisfy the “prescription drug” aspect of the TPA’s definition of “dispense” because appellants did not provide the lipoic acid to Dr. Tan pursuant to an individual prescription for Stacey Miller. See id. The standards for “pharmacist” under the TMLA and “dispense” under the TPA, however, require merely a “prescription drug,” not a drug specifically prescribed for a particular individual. Id; Tex. Civ. Prac. ■& Rem.Code Ann. § 74.001(22). Appellees rely heavily on the report of the Texas Department of State Health Services to support their claim that there was no prescription for a specific patient. This very report concedes, however, that appellants were compounding “prescription drugs, such as: Lipoic Acid Injectable 200 mg/ml.” [Emphasis added.] Furthermore, in addition to labeling the lipoic acid injections as a “prescription drug,” the report also includes a report from the pharmacy’s records of the prescriptions provided to Dr, Tan, which lists the date and time that appellants delivered the lipoic acid injections, assigns each order a separate “Rx #,” and notes the specifications and instructions for the lipoic acid to be dispensed.
The majority states that “Dr. Tan placed a ‘bulk’ telephone order with appellants on November 29, 2011 and on December 2, 2011 for an aggregate of twenty-three 30-millimeter vials of injectable lipoic acid for ‘office use.’ ” An orally transmitted prescription order may be valid, though, provided that the pharmacist notes “the dispensing instructions of the practitioner” and “retain[s] the prescription for the period specified by law.” Tex. Occ.Code Ann. § 562.004 (West 2012). The pharmacy’s report clearly indicates that the pharmacist to whom Dr. Tan transmitted his order noted Dr. Tan’s specifications for 200 mg/ml lipoic acid injections. Lastly, there is no requirement that compounding be
The second issue the majority raises regarding the definition of “dispense” concerns the phrase “delivery to an ultimate user.” Id. § 551.003(16). The TPA defines “deliver” or “delivery” as “the actual, constructive, or attempted transfer of a prescription drug or device or controlled substance from one person to another, with or without consideration.” Id. § 551.003(13). The TPA also defines an “ultimate user” as a “person who obtains or possesses a prescription drug or device for the person’s own use or for the use of a member of the person’s household.” Id. § 551.003(43). The majority rests its ruling on these two definitions; however, other statutes provide further relevant guidance regarding the meaning of “dispense.” For instance, the health and safety code also defines “dispense” in the context of regulating pharmaceutical practice; it provides,
“Dispense” means the delivery of a controlled substance in the course of professional practice or research, by a practitioner or person acting under the lawful order of a practitioner, to an ultimate user or research subject. The term includes the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for delivery.
Tex. Health & Safety Code Ann. § 481.002(12) (West 2010) (emphasis added). Therefore, according to this definition, the chain of events comprising dispensation would have included Dr. Tan’s administering the lipoic acid to Stacey Miller as well as appellants’ compounding of it. See id.; Tex. Occ.Code Ann. § 551.003(1) (defining “administer” as the direct application of a prescription drug to the body of a patient, including by injection).
The majority construes the definition of “ultimate user” too narrowly, asserting that appellants did not fulfill the standard because they delivered the compounded lipoic acid to Dr. Tan, who did not use the drug on himself. This construction unnecessarily increases the already heightened standard imposed by the legislature; nowhere does the TMLA dictate the strict privity between a pharmacist and an ultimate user that the majority suggests. The majority’s interpretation would deny the many pharmacists who compound drugs for individuals that must be administered by nurses or physicians, intravenously or otherwise, of the protections afforded to them by the TMLA simply because the pharmacist did not personally deliver the prescription to the recipient. Despite the TPA’s more limited definition under the health and safety code, the administration of a drug to an ultimate user by a physician constitutes sufficient “delivery” that satisfies the definition of “dispense.”
The majority conflates two separate elements of the statutory definition of “dispense.” Essentially, the majority states that for a pharmacist to qualify as a health care provider under the TMLA, the pharmacist must dispense a prescription drug pursuant to an individual prescription for a specific patient; however, this theory unduly heightens the already strict standard pharmacists must satisfy’ to qualify as health care providers under the TMLA. The definition of “dispense” contains multiple distinct requirements: a pharmacist must (1) prepare, compound, or label, (2) in the course of professional practice, (3) a prescription drug (4) for delivery to an ultimate user or the ultimate user’s agent (5) under a practitioner’s lawful order. Tex. Occ.Code Ann; § 551.003(16) (defining “dispense”). The majority’s interpretation construes the fourth and fifth requirements so as to create a more onerous requirement that a pharmacist may only prepare, compound, or package a prescription drug for an ultimate user pursuant to a practitioner’s lawful prescription specifically for the ultimate user to satisfy the definition of “dispense.” Id. The statute clearly states, however, that a pharmacist need only compound a prescription drug pursuant to a practitioner’s lawful order to satisfy the definition of “dispense.” See id. The occupations code includes a distinct definition of “prescription drug order,” defining a prescription drug order as “an order from a practitioner ... to a pharmacist for a drug or- device to be dispensed.” Id. § 551.003(37)(A) (emphasis added). This definition, too, does not require that a prescription drug order be an order from a practitioner to a pharmacist for a drug to be dispensed pursuant to a prescription for a specific patient. As stated above, Dr. Tan’s telephonic order to appellants ■ for lipoic acid qualifies as a “practitioner’s lawful order” as it pertains to the definition of “dispense,” even though Dr. Tan did not order the lipoic acid exclusively as a prescription for Stacey Miller.
Thus, the final remaining issue is whether the criterion that the drug is delivered to an “ultimate user’s agent” is satisfied. The majority concedes that a doctor or nurse administering a drug could serve as an “ultimate user’s agent”; however, they qualify this concession by stating that a doctor or nurse is an “ultimate user’s agent” under the definition of “dispense” only if the doctor or nurse administers a drug prescribed specifically for the “ultimate user.” This creates another ancillary requirement not included within the statute. The definition of “ultimate user” requires only that a person “obtain! ] or
■ In sum, because the lipoic acid was compounded under Dr. Tan’s lawful order and then delivered either actually to Stacey Miller’s agent, Dr. Tan, or constructively to Stacey Miller herself by Dr. Tan, appellants did in fact “dispense” the- lipoic acid, which qualifies them as health care providers under the TMLA. Id. §§ 551.003(13) (defining “delivery” as the “actual” or “constructive” transfer of a prescription drug), 551.003(16); Tex. Civ. Prac. & Rem. Code Ann. § 74.001(22).
Interpretation of the TMLA
The majority’s interpretation also runs contrary to the case law interpreting the TMLA. In general, courts have construed the TMLA broadly, so as to include claims within the TMLA. See, e.g., Diversicare Gen. Partner, Inc. v. Rubio,
The core rationale behind holding professionals to a professional standard of care and requiring a threshold expert report is that many of the elements of a medical negligence claim and the facts that underlie them transcend common knowledge. In most claims of medical negli
The majority’s construction of the TMLA leads to a result directly at odds with the legislature’s intent. Not only does the majority’s interpretation deny appellants the statutory protection of measuring their professional judgment against an accepted standard of professional care, it also exposes appellants to greater liability by allowing appellees to couch an essentially health care based claim in terms of a product liability claim and circumvent the procedural standards of chapter 74. See Omaha Healthcare Ctr., L.L.C.,
Here, appellees allege their claims against appellants in terms of a products liability suit in which they assert that appellants compounded defective lipoic acid. Compounding is an integral aspect of the practice of pharmacy, however, such that it is part of the standard curriculum at most pharmacy schools. See Med. Ctr. Pharm. v. Mukasey,
Compounding prescription drugs requires an" equal, if not greater, degree of professional judgment on the part of the pharmacist than does preparing preformed dosage units for distribution. Even so, the majority of claims brought under chapter 74 that name a pharmacist as a defendant have concerned the misfilling of a prescription or distribution of an incorrect drug, and courts have consistently held that these claims are in fact health care liability claims requiring an expert, report under chapter 74. See, e.g., Walgreen Co. v. Hieger,
Moreover, even claims against pharmacists that resemble products liability claims have been held to fall within the parameters of chapter 74. See San Antonio Extended Med. Care, Inc. v. Vasquez,
Here, appellants engaged in a process much more complex than ensuring that oxygen tanks were fully filled or batteries fully charged at the time of delivery. Also, the process of compounding requires more professional judgment and discretion than the process of distributing preformed dosage units. To hold appellants’ alleged negligence in compounding to a standard of ordinary care when other courts have measured even the duty to ensure that batteries are properly charged or preformed dosage prescriptions properly filled against an accepted standard of professional care would be counterintuitive to our primary goal of giving effect to the legislature’s intent as expressed within the TMLA. See Tex. Gov’t Code Ann. § 312.005 (West 2013) (“In interpreting a statute, a court shall diligently attempt to ascertain legislative intent.”). The Texas Supreme Court has recognized the breadth of the TMLA’s scope, and the interpretations of other courts listed above indicate how the courts have followed this trend specifically with respect to the TMLA as it pertains to pharmacists. Tex. W. Oaks Hosp., LP v. Williams,
According to the majority’s interpretation, the difference between holding a pharmacist liable under the TMLA or ordinary tort law could be whether a nurse or physician administered the drug as opposed to the pharmacist directly delivering the prescription to the patient. Such an interpretation is not only unduly strict and constraining, but it is also untenable insofar as it leads to an absurd result that diverges from the legislature’s intent. See Jennings v. WallBuilder Presentations, Inc. ex rel. Barton,
Conclusion
One of the primary purposes of the TMLA is to protect professionals from meritless negligence claims and to measure any alleged negligence against a professional standard. Respectfully, I believe the majority’s interpretation would deny appellants the statutory protection of measuring their judgment against an acceptable standard of professional care. For these reasons, I dissent from the majority opinion and would reverse the trial court’s denial of appellants’ motion to dis