Becker v. Meyer Rexall Drug Co.

• Decision Date: 22 May 1985
• Docket Number: Docket No. 77354
• Parties: Harry E. BECKER, Personal Representative of Harry L. Becker, Deceased, Plaintiff-Appellee, v. MEYER REXALL DRUG COMPANY, an unincorporated voluntary association, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 424

367 N.W.2d 424

141 Mich.App. 481

Harry E. BECKER, Personal Representative of Harry L. Becker Deceased, Plaintiff-Appellee, v. MEYER REXALL DRUG COMPANY, an unincorporated voluntary association, Defendant-Appellant.

Docket No. 77354.

Court of Appeals of Michigan.

Submitted Feb. 13, 1985.

Decided March 18, 1985.

Released for Publication May 22, 1985.

Fried & Sniokaitis by David H. Fried, Detroit, for plaintiff-appellee; E.R. Whinham, Southfield, of counsel.

Lynn L. Lower, J.D., P.C. by Lynn L. Lower, Southfield, for defendant-appellant.

Before V.J. BRENNAN, P.J., and CYNAR and J.W. FITZGERALD, ^* JJ.

PER CURIAM.

Plaintiff filed suit against defendant for alleged actions which resulted in the death of plaintiff's decedent. Defendant brought a motion for accelerated judgment, which was denied. Defendant sought leave to appeal. Leave was granted by this Court on July 27, 1984.

Plaintiff's original complaint, and the amended complaint filed after the motion for accelerated judgment was heard, allege that defendant negligently filled plaintiff's decedent's prescription. Plaintiff alleged that defendant supplied decedent with the drug Diabinese instead of the prescribed drug Dilalume. The Dilalume was incompatible with Inderal, another drug decedent was taking. Plaintiff alleged the incompatibility of the Inderal and the mistakenly supplied Diabinese resulted in the death of decedent.

Defendant brought a motion for accelerated judgment pursuant to GCR 1963, 116.1(5) claiming that plaintiff's claim was barred by the limitation period in M.C.L. Sec. 600.5805(4); M.S.A. Sec. 27A.5805(4). The trial court denied the motion. The trial court ruled that the alleged negligence was not malpractice within the above statute. We disagree and reverse.

The question presented is whether M.C.L. Sec. 600.5805(4); M.S.A. Sec. 27A.5805(4) applies to negligence on the part of a pharmacist. Plaintiff argues that this is not a professional malpractice action; plaintiff claims it is a negligence action. Plaintiff thus reasons that M.C.L. Sec. 600.5805(8); M.S.A. Sec. 27A.5805(8), the period of limitation for negligence, applies and that M.C.L. Sec. 600.5805(4); M.S.A. Sec. 27A.5805(4) does not. The prescription was allegedly filled on January 13, 1981; decedent died on January 22, 1981. The suit was commenced on October 13, 1983. If the negligence limitation period applies, the action is timely, but if the malpractice limitation period of two years applies, the action is barred.

The complaint alleges a breach of duty which arose out of the professional relationship between defendant, a pharmacist, and the decedent, his client. Plaintiff has attempted to couch the complaint in terms of negligence; however, the complaint is clearly one for malpractice. ¹

The Michigan Supreme Court stated in Delahunt v. Finton, 244 Mich. 226, 230, 221 N.W. 168 (1928):

"Malpractice, in its ordinary sense, is the negligent performance by a physician or surgeon of the duties devolved and incumbent upon him on account of his contractual relations with his patient."

The duty allegedly breached, from our reading of the complaint, arose out of the professional relationship between defendant and decedent. Cf., Rogers v. Horvath, 65 Mich.App. 644, 237 N.W.2d 595 (1975), lv. den. 396 Mich. 845 (1976); Pankow v. Sables, 79 Mich.App. 326, 261 N.W.2d 311 (1977). A similar situation arose in Adkins v. Annapolis Hospital, 116 Mich.App. 558 323 N.W.2d 482 (1982), aff'd 420 Mich. 87, 360 N.W.2d 150 (1984). In that case plaintiff unsuccessfully argued that his complaint alleged negligence but not malpractice. The Adkins panel quoted Cotton v. Kambly, 101 Mich.App. 537, 540-541, 300 N.W.2d 627 (1980), lv. den. 411 Mich. 1033 (1981), in reply:

" '[M]edical malpractice * * * has been defined as the failure of a member of the medical profession, employed to treat a case professionally, to fulfill the duty to exercise that degree of skill, care and diligence exercised by members of the same profession, practicing in the same or similar locality * * *.' " Adkins, 116 Mich.App. p. 564, 323 N.W.2d 482.

It is clear to us that the defendant is a member of a licensed profession. M.C.L. Sec. 333.17711; M.S.A. Sec. 14.15(17711). Plaintiff has alleged a failure on the part of the defendant to properly discharge his professional duties, thus causing damage to plaintiff. The key to a malpractice claim is whether it is alleged that the negligence occurred within the course of a professional relationship. The allegations of this complaint indicate that the negligence occurred within such a relationship. No matter how we read plaintiff's complaint we must return to the conclusion that this is a malpractice claim.

M.C.L. Sec. 600.5838; M.S.A. Sec. 27A.5838 provides that a malpractice claim against a state licensed professional, such as the defendant, must be brought within the two-year period stated in M.C.L. Sec. 600.5805; M.S.A. Sec. 27A.5805. Plaintiff did not commence suit until more than two years passed. The suit was barred, and accelerated judgment should have been granted. Our conclusion is consistent with other applications of the accrual provisions of M.C.L. Sec. 600.5838; M.S.A. Sec. 27A.5838 and the limitation period of M.C.L. Sec. 600.5805(4); M.S.A. Sec. 27A.5805(4). See, Adkins v. Annapolis Hospital, 420 Mich. 87, 94-95, 360 N.W.2d 150 (1984); Sam v. Balarado, 411 Mich. 405, 308 N.W.2d 142 (1981). The limitation period of M.C.L. Sec. 600.5805(4); M.S.A. Sec. 27A.5805(4) applies to an action where it is alleged that a licensed pharmacist mistakenly dispenses the wrong drug, thus harming the plaintiff.

Reversed.

* Retired Supreme Court Justice sitting on the Court of Appeals by assignment.

1 The pertinent allegations in the complaint stated:

"4) That Defendant is a licensed pharmacy, authorized to compound and sell drugs.

"5) That Plaintiff's decedent received a prescription from a physician for dilalume and inderol.

"6) That Plaintiff's Deceadent [sic]...