The appellant had a medical prescription filled at a pharmacy operated by The Kroger Company in one of its supermarkets, and the pharmacy dispensed to him a drug other than the one called for by the prescription. He brought this action against The Kroger Company, the pharmacist who was on duty when he presented the prescription, and the pharmacist who was on duty when the drug was *136 dispensed to him, seeking to recover for injuries he had allegedly sustained as a result of the mistake. The defendants moved to dismiss the action based on the appellant’s failure to comply with OCGA § 9-11-9.1 (a), which requires that “[i]n any action for damages alleging professional malpractice, the plaintiff shall ... file with the complaint an affidavit of an expert competent to testify . . . set[ting] forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” The trial court granted the motion, and this appeal followed. Held:
1. The appellant contends that OCGA § 9-11-9.1 (a) is not applicable to this case because his claim was not based on professional malpractice but on OCGA § 51-1-25, which provides as follows: “If a vender of drugs and medicines, by himself or his agent, either knowingly or negligently furnishes the wrong article or medicine and damage accrues to the purchaser, his patients, his family, or his property from the use of the drug or medicine furnished, the vender shall be liable for the injury done.” As we read this statutory provision, it does nothing more than codify, with respect to vendors of drugs and medicines, the general common law duty of all persons to exercise reasonable care and diligence to avoid injuring others. Where a vendor of drugs or medicines is a licensed pharmacist and is sued on the basis of allegations that he negligently dispensed the wrong drug in filling a medical prescription, the claim against him clearly is for professional malpractice; and we find nothing in OCGA § 51-1-25 which would obviate the need for compliance with OCGA § 9-11-9.1 in such a case.
2. The appellant similarly contends that his claim should have been allowed to proceed on a breach of warranty theory, based on the principle set forth in
Watkins v. Jacobs Pharmacy Co.,
3. The appellant alternatively contends that filling a prescription with the wrong medicine constitutes such plain and palpable negligence that a prima facie entitlement to recovery may be established in such cases without resort to expert opinion testimony, and that there is consequently no reason for requiring an expert affidavit in such cases. We must concede that this argument has a certain logical
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appeal. However, “[notwithstanding the fact that there is a ‘judicially-created rule’ dispensing with the expert-evidence requirement in cases of ‘clear and palpable’ professional negligence, it was held in
Barr v. Johnson,
4. The appellant contends that the action should have been allowed to proceed against The Kroger Company even if his failure to submit a supporting affidavit with his complaint pursuant to OCGA § 9-11-9.1 (a) required the dismissal of his claims against the two pharmacists. However, an examination of the complaint reveals that the claim against The Kroger Company was predicated solely on allegations that the two pharmacists were employed by it and were acting within the scope of their employment at all times pertinent to the action. Under these circumstances, the trial court correctly concluded that the appellant’s failure to comply with § 9-11-9.1 constituted a complete defense to the claim against the company as well as the claims against the pharmacists. See
Southern Eng. Co. v. Central Ga. EMC,
Judgment affirmed.