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Roberts v. Quick Rx Drugs, Inc.

Court of Appeals of Georgia, First Division

October 30, 2017

ROBERTS et al.
v.
QUICK RX DRUGS, INC.; and vice versa.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          MCMILLIAN, JUDGE.

         These cross-appeals arise from injuries that Bryant Roberts and his wife, Lynn Roberts, suffered after Bryant[1] 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.

         It is 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) (2010).

         Viewed 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.[2] The prescription bottles were labeled with the name of this other person and not Bryant's name.

         The 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.

         The 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.

         1. In 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.

         "Not 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).

         The 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, [3] but he acknowledged that it allows a pharmacist to ...


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