ROBERTS et al.
QUICK RX DRUGS, INC.; and vice versa.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
cross-appeals arise from injuries that Bryant Roberts and his
wife, Lynn Roberts, suffered after Bryant ingested
improperly dispensed medication, allegedly causing him to
suffer a fall. In Case No. A17A0736, the Robertses assert
that the trial court erred in granting summary judgment to
Quick Rx Drugs, Inc. ("Quick Rx") on their claims
for professional negligence/malpractice and punitive damages.
They also assert that the trial court erred in granting
summary judgment on an issue that was not presented in the
case: whether Bryant's preexisting Alzheimer's
disease was caused by the improperly dispensed medication and
subsequent fall. In Case No. A17A0737, Quick Rx cross-appeals
the trial court's denial of their motion for summary
judgment on the issue of proximate cause.
well settled that
[s]ummary judgments enjoy no presumption of correctness on
appeal, and an appellate court must satisfy itself de novo
that the requirements of OCGA § 9-11-56 (c) have been
met. In our de novo review of the grant [or denial] of a
motion for summary judgment, we must view the evidence, and
all reasonable inferences drawn therefrom, in the light most
favorable to the nonmovant.
(Citations and punctuation omitted.) Cowart v.
Widener, 287 Ga. 622, 624 (1) (a) (697 S.E.2d 779)
in that light, the evidence shows that Bryant had been
diagnosed with a number of conditions including
Alzheimer's disease, diabetes, and high blood pressure,
and he was prescribed various medicines as part of his
treatment. On or about August 26, 2010, when Lynn dropped off
two prescriptions for Bryant at Quick Rx's drive-through
window, the cashier told her that she had prescriptions ready
for pick up. Lynn took the bag handed to her, signed a credit
card slip, and drove away. The bag contained two prescription
bottles, one containing 1 mg Xanax pills and the other
containing 100 mg Zoloft pills, medications that were
prescribed and intended for another patient with the last
name of Roberts, but not for Bryant. The prescription bottles
were labeled with the name of this other person and not
next night, at around 11:00 p.m., Lynn administered 200 mg of
Zoloft and 1 mg of Xanax to Bryant. At approximately 4:00
a.m., Lynn heard Bryant calling her name and discovered him
on the floor near the front door of their house (the
"Fall"). Lynn saw nothing around the area that
could have constituted a trip hazard or accounted for
Bryant's Fall. Bryant appeared confused and was unable to
get up, prompting Lynn to summon an ambulance. At the
hospital, Bryant was diagnosed with a hip fracture, which
required emergency surgery.
Robertses filed this action against Quick Rx, asserting
claims for professional negligence, simple negligence,
malpractice, loss of consortium, and punitive damages. Quick
Rx moved for summary judgment on all these claims, and the
trial court granted the motion as to the Robertses'
claims for professional negligence/malpractice and punitive
damages. The trial court also determined that the Robertses
had failed to present evidence to raise a jury issue as to
whether Bryant's diagnosis of Alzheimer's was caused
by the improper medications or the Fall.
their appeal, the Robertses first assert that the trial court
erred in granting summary judgment to Quick Rx on their
claims of professional negligence/ malpractice.
every suit which calls into question the conduct of one who
happens to be a medical professional is a medical malpractice
action. We must look to the substance of an action against a
medical professional in determining whether the action is one
for professional or simple negligence." (Citation and
punctuation omitted.) Carter v. Cornwell, 338
Ga.App. 662, 666 (791 S.E.2d 447) (2016). The determination
of whether a complaint asserts a claim of malpractice
presents a question of law for the court. Piedmont Hosp.,
Inc. v. D. M., 335 Ga.App. 442, 445 (2) (779 S.E.2d 36)
(2015). In order to assert a claim of professional
malpractice in this case, the Robertses must show (1) the
duty owed by the pharmacist to the patient, (2) a breach of
that duty based on the failure to exercise the requisite
degree of skill and care, and (3) the failure proximately
caused the injury sustained. Clay v. Rippy, 299
Ga.App. 224, 227 (682 S.E.2d 330) (2009). A malpractice claim
requires expert testimony because
the court and the jury must have a standard measure which
they are to use in measuring the acts of the professional in
determining whether he exercised a reasonable degree of care
and skill in carrying out his professional duties. The proper
standard of measurement is to be established by testimony of
professionals; for it is a professional question.
Hopkinson v. Labovitz, 231 Ga.App. 557, 559 (499
S.E.2d 338) (1998).
Robertses rely on the expert testimony of Sherman Weaver,
Pharm.D., who testified that the applicable standard of care
in this case requires that an offer of pharmaceutical
counseling be made every time a patient picks up a
prescription and that part of this counseling duty is
"to make sure that you have the right patient and the
right drug." The standard for pharmaceutical counseling
in Georgia is codified at OCGA § 26-4-85. That statute
provides, with certain exceptions not applicable here, that
[u]pon receipt of a prescription drug order and following a
review of the patient's record, the pharmacist or the
pharmacy intern operating under the direct supervision of the
pharmacist shall personally offer to discuss matters which
will enhance or optimize drug therapy with each patient or
caregiver of such a patient.
OCGA § 26-4-85 (b). However, counseling is not required
"when the patient or the caregiver of the patient
refuses such consultation or counseling." OCGA §
26-4-85 (e). Weaver explained that the standard of care
requires that an offer of counseling be made every time
medication is dispensed,  but he acknowledged that it allows a
pharmacist to ...