Adkins v. Mong

Decision Date07 July 1988
Docket NumberDocket No. 90217
Citation168 Mich.App. 726,425 N.W.2d 151
PartiesLincoln ADKINS, Jr., and Theresa Adkins, Plaintiffs-Appellees, v. Dr. Mongkol MONG, Dr. H.R. Butler, Dr. Karl Schroeder, Dr. Arthur Morley, Dr. John J. Kelley, Parklane Pharmacy, Defendants, and Motor City Prescription Centers, Defendant-Appellant. 168 Mich.App. 726, 425 N.W.2d 151
CourtCourt of Appeal of Michigan — District of US

[168 MICHAPP 727] Lakin, Worsham & Victor, P.C. by Larry A. Smith, Southfield, for plaintiffs-appellees.

Donald J. Morbach & Associates by Christopher E. Pencak, Detroit, for Motor City Prescription Centers.

Before SHEPHERD, P.J., and GILLIS and LATREILLE, * JJ.

PER CURIAM.

Defendant Motor City Prescription Centers appeals by leave granted from an order denying its motion for summary disposition brought pursuant to MCR 2.116(C)(8). We reverse.

Lincoln Adkins, Jr. (hereafter plaintiff), and Theresa Adkins filed this action on October 30, 1984, alleging negligence and malpractice on the part of various physicians and pharmacies in prescribing and supplying plaintiff with excessive amounts of controlled substances during the years 1978 through 1984. Plaintiff claims that, as a result of defendants' negligence and malpractice, he became addicted to several narcotic substances including Seconal, Valium, Tandearil, Nembutal and Gantanol.

As to defendant Motor City Prescription Centers, plaintiff alleges that defendant breached its statutory and common-law duties to plaintiff by (1) failing to maintain accurate customer profile cards, (2) failing to maintain accurate prescription [168 MICHAPP 728] records, (3) failing to identify over-prescribing physicians, (4) failing to independently determine that plaintiff was a drug abuser, (5) failing to communicate with area pharmacies regarding plaintiff's status as a drug abuser, and (6) filling plaintiff's prescriptions for highly abused substances. In his more definite statement filed May 2, 1985, pursuant to a court order, plaintiff identified eighty prescriptions for controlled substances filled by defendant for plaintiff from April 21, 1978, until April 16, 1984. In their briefs on appeal, the parties referred to 116 prescriptions filled by defendant for plaintiff over a period of six years. In any event, there is no dispute that each of the prescriptions was written by a licensed physician.

Defendant filed a motion for summary disposition under MCR 2.116(C)(8). At the hearing on the motion conducted January 3, 1986, defense counsel argued that plaintiff had failed to state an enforceable legal claim since a pharmacy owes no legal duty to its customers to monitor or police prescriptions issued by licensed physicians. The trial court rejected defendant's argument and held that facts might develop which would support a finding that defendant owed plaintiff some or all of the duties alleged in the complaint.

This panel recently decided Stebbins v. Concord Wrigley Drugs, Inc., 164 Mich.App. 204, 416 N.W.2d 381 (1987), in which we held that "a pharmacist has no duty to warn the patient of possible side effects of a prescribed medication where the prescription is proper on its face and neither the physician nor the manufacturer has required that any warning be given to the patient by the pharmacist." 164 Mich.App. 218, 416 N.W.2d 381. For the reasons stated in that opinion, we hold that defendant pharmacy in this case had no duty to warn plaintiff of the potential side effects of the substances it was dispensing[168 MICHAPP 729] to plaintiff in accordance with the prescriptions submitted, all of which were valid on their face. As we explained in Stebbins, a pharmacist owes his customers a duty to properly fill lawful prescriptions. Indeed, a pharmacist is held to a very high standard of care in performing this duty and may be held liable in tort for any breach. Stebbins, supra, pp. 215-216, 416 N.W.2d 381, citing Troppi v. Scarf, 31 Mich.App. 240, 245, 187 N.W.2d 511 (1971). Generally, however, a pharmacist will not be held liable for correctly filling a prescription issued by a licensed physician. Id.; Lemire v. Garrard Drugs, 95 Mich.App. 520, 526, 291 N.W.2d 103 (1980).

In this case, plaintiff alleges that defendant pharmacist owed plaintiff the additional duty of maintaining detailed and accurate customer records, and a corresponding duty to identify addicted customers and their over-prescribing physicians, either independently or through the combined efforts of other local pharmacists. Presumably, plaintiff would argue that the pharmacist who identifies the addicted customer as a patient of an over-prescribing physician would then be obligated to act on the information and (1) refuse to fill prescriptions, (2) warn the customer or (3) notify the physician. Other jurisdictions which have been presented with this same theory of liability have overwhelmingly rejected it in favor of the more limited duty described in Stebbins.

In Pysz v. Henry's Drug Store, 457 So.2d 561 (Fla.App.1984), defendant pharmacist filled the plaintiff's prescriptions for Quaaludes for a period of nine years. The plaintiff alleged that the defendant knew or should have known that the use of this drug over an extended period of time resulted in addiction and that the defendant knew that the plaintiff had in fact become addicted. According to the plaintiff, the defendant thus had a duty to [168 MICHAPP 730] warn the plaintiff of the dangerous side effects of the drug it was dispensing, to warn the physician that the plaintiff had become addicted and to refrain from further dispensing the drug to the plaintiff. The Florida Court of Appeals rejected the plaintiff's theory of liability and held that it is the physician who owes the duty to the patient to monitor prescription drug usage and that a pharmacist will not be found liable for lawfully...

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    ...447, 710 P.2d 247, 253 (1985); Bichler v. Willing, 58 A.D.2d 331, 335, 397 N.Y.S.2d 57 (N.Y.App.Div.1977); Adkins v. Mong, 168 Mich.App. 726, 425 N.W.2d 151, 152 (1988); McLeod v. W.S. Merrell Co., 174 So.2d 736, 739 (Fla.1965). Illinois courts reach the same result but call it an applicati......
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