Phillips v. Larry's Drive-In Pharmacy, Inc.

647 S.E.2d 920, 220 W. Va. 484, 2007 W. Va. LEXIS 58
CourtWest Virginia Supreme Court
DecidedJune 28, 2007
Docket33194
StatusPublished
Cited by41 cases

This text of 647 S.E.2d 920 (Phillips v. Larry's Drive-In Pharmacy, Inc.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phillips v. Larry's Drive-In Pharmacy, Inc., 647 S.E.2d 920, 220 W. Va. 484, 2007 W. Va. LEXIS 58 (W. Va. 2007).

Opinions

STARCHER, Justice:

In this certified question from the Circuit Court of Boone County, we are asked to examine a case where a plaintiff alleges that [487]*487a pharmacy negligently filled a prescription. The question from the circuit court asks us to consider whether a pharmacy is a “health care provider” entitled to rely upon the protections of the 1986 Medical Professional Liability Act.

After careful consideration of the briefs of the parties and the amici curiae,1 the arguments, and all matters of record, we conclude that a pharmacy is not a health care provider as defined by the Act.

I.

Facts & Background

In December 2001, plaintiff August Eugene Phillips visited his doctor, Sriramloo Kesari, complaining of pain and swelling in his left foot. Dr. Kesari diagnosed the plaintiff as suffering from acute gouty arthritis, and wrote a prescription for Colchicine tablets. The plaintiff was also told to use the medication if the symptoms appeared in the future.

On December 3, 2001, the plaintiff drove to defendant Larry’s Drive-In Pharmacy, Inc. (hereafter, “the pharmacy”), and presented the prescription. The pharmacy filled the Colchicine prescription, and the instructions printed on the bottle by the pharmacy matched exactly those written on the prescription by the doctor: “take 1 tablet every hour1 until pain stops or diarrhea starts or nausea.” Neither the doctor’s prescription nor the pharmacy’s printed instructions stated an upper limit on the number of tablets that the plaintiff could take during any given time period.

In February 2002, the plaintiff began to again suffer the symptoms of acute gouty arthritis, and for three days he took Colchi-cine in accordance with the instructions on the bottle. But on February 13, 2002, the plaintiff began to experience stroke-like symptoms and was taken to a hospital. Doctors determined that the plaintiff was suffering from Colchicine toxicity and poisoning that had severely and permanently damaged the plaintiffs kidneys. The record indicates that the plaintiff is now required to undergo routine kidney dialysis, and will do so for the remainder of his life.

The plaintiff and his wife Cheryl filed the instant lawsuit against Dr. Kesari and defendant Larry’s Drive-In Pharmacy, Inc., in March 2003. The lawsuit alleged that Dr. Kesari, inter alia, negligently prescribed Colchicine for the plaintiff without specifying any limit on the number of tablets that could be taken during some defined time period. The lawsuit further alleged that Larry’s Drive-In Pharmacy, inter alia, negligently filled the prescription by failing to clarify Dr. Kesari’s instructions to specify a maximum daily dosage, and in failing to recognize the potential toxicity of the prescribed dose of Colchicine.

Dr. Kesari later settled with the plaintiffs, and he was dismissed from the lawsuit with prejudice.

Through the course of discovery, counsel for the pharmacy asserted that the ease should proceed according to the requirements of the West Virginia Medical Professional Liability Act, W.Va.Code, 55-7B-1 to - 12 (“the MPLA”).

The plaintiffs subsequently filed a pre-trial motion in limine to prevent the pharmacy from relying upon the MPLA. Specifically, the plaintiffs argued that pharmacies like the defendant are not encompassed by the definition of “health care provider[s]” who are protected by the MPLA. The statute states:

“Health care provider” means a person, partnership, corporation, facility or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, hospital, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, or psychologist, or an officer, employee or agent thereof acting in the course and [488]*488scope of such officer’s, employee’s or agent’s employment.

W.Va.Code, 55-7B-2(c) [1986].2

As support for the plaintiffs’ interpretation of the MPLA, counsel for the plaintiffs introduced affidavits by four individuals who were members of the Legislature when the MPLA was enacted in 1986.3 Further, J. Robert Rogers, counsel for the plaintiffs, offered his own affidavit about the intent of the Legislature in enacting the MPLA, because he too was a member of the West Virginia Senate in 1986. These five individuals indicated that they were members of a ten-member conferee committee (composed of five delegates and five senators) charged with conferring and reaching an agreement between the House of Delegates and the Senate upon the language of the MPLA prior to its passage. All five of these members of the 1986 Legislature stated that lobbyists representing pharmacies and pharmacists were present when the MPLA was being discussed and enacted, but that these lobbyists insisted that pharmacists and pharmacies did not want to be covered by the MPLA. Accordingly, these five former members of the Legislature contended that pharmacists and pharmacies were not intended to be encompassed by the definition of “health care provider” in the MPLA.

The plaintiff offered the circuit court two further reasons why pharmacies are not covered by the MPLA. First, the plaintiff pointed out that W.Va.Code, 55-7B-2 [1986] has been revised twice since 1986 (in 2003 and 2006), and neither time has the Legislature modified the definition of “health care provider” to specifically include pharmacists and pharmacies. Second, the plaintiff stated that in 20054 two bills were introduced in the Legislature to amend W.Va.Code, 55-7B-2 to include pharmacists and pharmacies, but neither of the bills was approved.

At a hearing on March 16, 2006, the circuit court denied the plaintiffs’ motion in limine and ruled that pharmacies were included within the definition of “health care provider” in the MPLA. The circuit court declined to consider the affidavits by the former legislators. However, in an order dated June 2, 2006, the circuit court stayed all proceedings and certified the following question to this Court:

In a civil action filed against a defendant licensed pharmacy for allegedly having negligently dispensed medication, is the pharmacy a “health care provider”, as defined by West Virginia Code § 55-7B-2(c)? Answer of the Circuit Court: Yes.

We agreed to review the certified question on September 21, 2006.

II.

Standard of Review

It is well settled that this Court’s review of a circuit court’s answer to a certified question that interprets a statute is de novo. As we said in Syllabus Point 1 of Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), “The appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Also, the certified question before us requires us to construe the Medical Professional Liability Act. We have held that “[w]here the issue ... is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va.

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Cite This Page — Counsel Stack

Bluebook (online)
647 S.E.2d 920, 220 W. Va. 484, 2007 W. Va. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-larrys-drive-in-pharmacy-inc-wva-2007.