Kintigh v. Abbott Pharmacy
| Decision Date | 07 June 1993 |
| Docket Number | Docket No. 143369 |
| Citation | 503 N.W.2d 657,200 Mich.App. 92 |
| Parties | David C. KINTIGH, Plaintiff-Appellant, v. ABBOTT PHARMACY, a Michigan corporation, Benny Abbott, R.Ph., Bud Discount Pharmacy, a Michigan corporation, Russell M. Ripma, R.Ph., Lewis Langridge, R.Ph., Richard T. Gibson, R.Ph., Edwin C. Gort, R.Ph., Cascade Pharmacy, a Michigan corporation, Charles J. Leen, R.Ph., Eastgate Pharmacy, a Michigan corporation, Ward Duyser, R.Ph., Finer Wyoming Pharmacy, a Michigan corporation, Robert B. Feighner, R.Ph., Heartside Pharmacy, a Michigan corporation, James G. Coombs, R.Ph., Charles J. Leen, R.Ph., Peter L. Middleton, R.Ph., The Medicine Shoppe, a Michigan corporation, Kurt Johnson, R.Ph., Gene Meyer Pharmacy, a Michigan corporation, Edward G. Cantor, R.Ph., Edward G. Sindelar, R.Ph., Reagan's Pharmacy, a Michigan corporation, B. Terrence Reagan, R.Ph., Rite-Aid Discount Pharmacy, a Pennsylvania corporation, Timothy Bos, R.Ph., Robert G. Mitchell, R.Ph., Joseph Bristol, R.Ph., David R. Smith, R.Ph., Sweet's Pharmacy, a Michigan corporation, Tom's Pharmacy, a Michigan corporation, Thomas J. Taylor, R.Ph., Richard Kleff, R.Ph., David Zeile, R.Ph., jointly and severally, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
William G. Reamon, Sr., Grand Rapids, for David C. Kintigh.
Tolley, Fisher & Verwys, P.C. by Mark H. Verwys and James B. Doezema, Grand Rapids, for Abbott Pharmacy and Benny Abbott.
Kluczynski, Girtz & Vogelzang by Ella S. Parker, Grand Rapids, for Bud Discount Pharmacy, Russell M. Ripma, Lewis Langridge, Richard T. Gibson, and Edwin C. Gort.
Denenberg, Tuffley, Bocan, Jamieson, Black, Hopkins & Ewald, P.C. by Curt A. Benson and Michelle F. Kitch, Grand Rapids, for Cascade Pharmacy, Charles J. Leen, Heartside Pharmacy, James G. Coombs, and Peter L. Middleton.
Davis & Fajen by Peter A. Davis and Nelson P. Miller, Ann Arbor, for Eastgate Pharmacy and Ward Duyser.
Farr & Oosterhouse by John R. Oostema, Grand Rapids, for Finer Wyoming Pharmacy and Robert B. Feighner.
Bremer, Wade, Nelson, Mabbitt & Lohr by Phillip J. Nelson, Grand Rapids, for The Medicine Shoppe and Kurt Johnson.
Cholette, Perkins & Buchanan by Robert E. Attmore, Grand Rapids, for Gene Meyer Pharmacy, Edward G. Cantor, and Edward G. Sindelar.
Smith, Haughey, Rice & Roegge by Lance R. Mather, Grand Rapids, for Reagan's Pharmacy and B. Terrence Reagan.
Miller, Canfield, Paddock & Stone by Gary E. Mitchell, Grand Rapids, for Rite-Aid Discount Pharmacy, Timothy Bos, Robert G. Mitchell, Joseph Bristol, David R. Smith, and Sweet's Pharmacy.
Linsey, Strain & Worsfold, P.C. by Peter D. Bosch, Grand Rapids, for Tom's Pharmacy, Thomas J. Taylor, Richard Kleff, and David Zeile.
Before MICHAEL J. KELLY, P.J., and WEAVER and SHELTON, * JJ.
Plaintiff brought suit against defendants, twelve pharmacies and twenty-two pharmacists, alleging that defendants repeatedly sold Schedule V (21 U.S.C. § 812), nonprescription, codeine-based cough syrup to plaintiff, perpetuating his preexisting substance abuse problem. Plaintiff alleged defendants' repeated cough syrup sales to him constituted negligence and a breach of the professional standard defendants owed him. Defendants collectively moved for summary disposition under both MCR 2.116(C)(8) and MCR 2.116(C)(10). The trial court granted defendants' motion for summary disposition under MCR 2.116(C)(8), stating that they owed no duty to identify an addicted customer and then refuse to sell him a controlled substance. Plaintiff now appeals as of right. We affirm.
Plaintiff asserts that the pharmacists owed him the duty to refrain from dispensing to him schedule V, nonprescription controlled substances. We disagree. The claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Wade v. Dep't. of Corrections, 439 Mich. 158, 483 N.W.2d 26 (1992).
This Court has previously rejected the theory that a pharmacist owes a customer a legal duty to monitor drug usage. Adkins v. Mong, 168 Mich.App. 726, 425 N.W.2d 151 (1988). We find the pharmacists owed no duty to plaintiff to discover his addicted status; failing knowledge of that, they had no duty to refuse to sell to him.
Affirmed.
This case presents an issue of first impression in this state: Does a pharmacist owe any actionable duty of care to persons to whom nonprescription controlled substances are dispensed? The trial court granted defendants' motion for summary disposition under MCR 2.116(C)(8) and held that no such duty exists. I disagree and would reverse.
Plaintiff is afflicted with a chronic chemical dependency. He has participated in several treatment programs, but each time resumed his addiction by purchasing and consuming vast amounts of Schedule V (21 U.S.C. § 812), codeine medications from defendants. In his complaint, he alleged that each of the pharmacists dispensed the addictive substances in violation of several specific control requirements of statutes, administrative regulations, and published ethical standards. The complaint, which included counts of general negligence and professional malpractice, alleged that as a proximate result of the sale of these drugs, plaintiff "developed and furthered a dependency and addiction to codeine and other controlled substances."
A motion under MCR 2.116(C)(8) tests the legal sufficiency of a complaint, considering only the pleadings. Royal Palace Homes, Inc. v. Channel 7 of Detroit, Inc., 197 Mich.App. 48, 51, 495 N.W.2d 392 (1992). All well-pleaded allegations are accepted as true and are to be considered in a light most favorable to the nonmoving party. Id. A court should grant summary disposition under this section only where the claims are so clearly unenforceable as a matter of law that no factual development could justify recovery. Id. Summary disposition is proper under these circumstances only if it is determined, as a matter of law, that defendants owed no duty to plaintiff. Abel v. Eli Lilly & Co., 418 Mich. 311, 343 N.W.2d 164 (1984), reh. den. 419 Mich. 1201 (1984), cert. den. sub nom ER Squibb & Sons, Inc. v. Abel, 469 U.S. 833, 105 S.Ct. 123, 83 L.Ed.2d 65 (1984); Terrell v. LBJ Electronics, 188 Mich.App. 717, 719, 470 N.W.2d 98 (1991). The issue before this Court is thus clearly framed: Does a pharmacist who dispenses controlled, addictive, nonprescription drugs in violation of applicable statutes, regulations, and professional standards owe an actionable legal duty to a customer who develops or furthers an addiction resulting from those drugs?
The existence of an actionable duty is a question that ultimately depends upon, and must reflect, the public policy of the state with regard to the obligations of the group in which the actor is included toward the group in which the injured person is included. Our Supreme Court stated the principle simply in Moning v. Alfono, 400 Mich. 425, 438-439, 254 N.W.2d 759 (1977):
Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person.
and again in Friedman v. Dozorc, 412 Mich. 1, 22, 312 N.W.2d 585 (1981):
In a negligence action the question whether the defendant owes an actionable legal duty to the plaintiff is one of law which the court decides after assessing the competing policy considerations for and against recognizing the asserted duty.
This Court has addressed the issue of duty in similar language:
Duty has been defined as an "obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct towards another." Schanz v. New Hampshire Ins Co, 165 Mich App 395, 402; 418 NW2d 478 (1988).... The question of duty is one solely for the court to decide, with the essential question being whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person. [Horn v. Arco Petroleum Co., 170 Mich.App. 390, 392, 427 N.W.2d 582 (1988).]
And Dean Prosser succinctly characterized the court's role when he stated:
[Duty] is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. [Prosser & Keeton, Torts (5th ed), § 53, p 358.]
We often look to statutes and regulations as primary evidence of public policy. As stated in Clark v. Dalman, 379 Mich. 251, 260-261, 150 N.W.2d 755 (1967):
Actionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law. The duty may arise specifically by mandate of statute, or it may arise generally by operation of law under application of the basic rule of common law....
Such duty of care may be a specific duty owing to the plaintiff by the defendant, or it may be a general one owed by the defendant to the public, of which the plaintiff is a part.
See also Douglas v. Edgewater Park Co., 369 Mich. 320, 119 N.W.2d 567 (1963).
The policy of this state in particular and the nation in general toward those who sell and dispense nonprescription controlled substances is made clear by a myriad of statutes and regulations. Congress recognized the double-edged sword of some addictive drugs when it established the national scheme for categorizing, or "scheduling," such chemicals and determining that the government would control their manufacture, distribution, and use. That statutory scheme is prefaced by the following language of 21 U.S.C. § 801:
The Congress makes the following findings and declarations:
(1) Many of the...
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...to warn plaintiff of potential side effects of narcotics dispensed in accord with valid prescriptions); Kintigh v. Abbott Pharmacy , 200 Mich.App. 92, 503 N.W.2d 657, 658 (1993) (no duty to discover a customer's addiction to nonprescription cough syrup and no duty to refuse to sell medicati......
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Kintigh v. Abbott Pharmacy, 143369
...861 Kintigh (David C.) v. Abbott Pharmacy NO. 97449. COA No. 143369. Supreme Court of Michigan April 19, 1994 Prior Report: 200 Mich.App. 92, 503 N.W.2d 657. Disposition: Leave to appeal LEVIN, J., would grant leave to appeal. ...