Estate of Johnson v. Badger Acquisition

• Decision Date: 04 April 2008
• Docket Number: No. 2D06-697.,2D06-697.
• Citation: 983 So.2d 1175
• Parties: The ESTATE OF Norma J. JOHNSON, by and through Susan JOHNSON, Personal Representative, Appellant, v. BADGER ACQUISITION OF TAMPA LLC, and Omnicare, Inc., Appellees.
• Court: Florida District Court of Appeals

983 So.2d 1175

The ESTATE OF Norma J. JOHNSON, by and through Susan JOHNSON, Personal Representative, Appellant, v. BADGER ACQUISITION OF TAMPA LLC, and Omnicare, Inc., Appellees.

No. 2D06-697.

District Court of Appeal of Florida, Second District.

April 4, 2008.

Rehearing Denied June 30, 2008.

Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, and Blair N. Mendes of Wilkes & McHugh, P.A., Tampa, for Appellant.

Hala Sandridge of Fowler White Boggs Banker, P.A., Tampa, for Appellee.

CASANUEVA, Judge.

The Estate of Norma J. Johnson, through its Personal Representative, Susan Johnson, appeals the final judgment in favor of Omnicare, Inc., and Badger Acquisition of Tampa, LLC (collectively, "Omnicare"). The trial court, in granting summary judgment in favor of Omnicare, concluded that the Estate failed to demonstrate a legal duty of care owed to the nursing home residents by Omnicare. We agree with the trial court's holding that as a matter of law the Estate failed to establish a legal duty that would support a negligence claim and therefore affirm.

I. FACTS AND PROCEDURAL HISTORY

Mrs. Johnson was approximately 66 years old when she died in 2000. Before her death, she was a resident of the Arbors, a skilled nursing home facility. Omnicare Inc. and Badger Acquisition of Tampa (collectively, Omnicare) had contracts with the Arbors to provide pharmaceutical dispensing and consulting pharmacy services.¹ After Mrs. Johnson's death, the Estate initially sought recovery through a wrongful death and survival action against the Arbors and another nursing home. The Estate alleged that the Arbors and the other nursing home caused Mrs. Johnson's death.² A year later, the Estate initiated the present suit against Omnicare. In its amended complaint, the Estate alleged duties of reasonable care that Omnicare assumed in favor of Mrs. Johnson based on Omnicare's contractual and legal duties to the Arbors. The Estate alleged that Mrs. Johnson was a third-party beneficiary of the contract between the Arbors and Omnicare because she was a resident at the nursing home. The Estate further alleged that Omnicare breached its duty of reasonable care in providing consultant pharmacy services, and as a proximate cause thereof, Mrs. Johnson experienced pain and aggravation of existing medical conditions and ultimately died. The Estate alleged the following acts or omissions as breaches of duty in each count of the amended complaint:

Failing to appropriately monitor the dispensing of medication for Norma J. Johnson; failing to appropriately monitor the proximity in which the same medication was dispensed for Norma J. Johnson; failing to adequately monitor Norma J. Johnson's medication administration; failing to appropriately monitor and address adverse effects and drug interactions of medications for Norma J. Johnson; failing to conduct a thorough and adequate monthly drug regimen review for Norma J. Johnson; failing to adequately and timely account, and reconcile, the controlled drugs to have been utilized for Norma J. Johnson; failing to appropriately monitor and address the undermedication/overmedication of Norma J. Johnson; failing to adequately assess that the dosage of the medication administered was inappropriate for Norma J. Johnson; failing to timely report irregularities in Norma J. Johnson medication reviews to appropriate personnel; failing to adequately develop the appropriate policies and procedures relating to pharmacy services within the facility; failing to provide adequate in-service education and training to nursing home and pharmacy personnel; failing to properly hire, retain, train, and supervise a licensed consultant pharmacist to ensure that the residents, including Norma J. Johnson, received appropriate pharmacy services.

After the parties conducted discovery, Omnicare moved for summary judgment and the trial court entered an order limiting Omnicare's potential liability to only the claims that arose after September 16, 1998. Omnicare moved again for summary judgment on the grounds that the Estate failed to demonstrate that Omnicare owed a legal duty to Mrs. Johnson. Omnicare also argued that the Estate's claims required an impermissible stacking of inferences. The trial court indicated the inference-stacking issue was a "very close call" but denied summary judgment. The trial court then held a hearing in January 2006 on the remaining question of duty. That same month the trial court rendered a summary judgment order holding that Omnicare's consultant pharmacist did not owe a legal duty to Mrs. Johnson. This appeal followed. The only matter before this court is whether the trial court properly granted summary judgment on the question of duty.

II. ANALYSIS

A. STANDARD OF REVIEW

An appellate court's review of summary judgment on a pure question of law is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). While breach, causation, and damages are typically questions for the finder of fact, the determination of duty is a matter of law. Fla. Dep't. of Corr. v. Abril, 969 So.2d 201, 205 (Fla. 2007); Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1110 (Fla.2005); Dudley v. City of Tampa, 912 So.2d 322, 324 (Fla. 2d DCA 2005). "Establishing the existence of a duty under negligence law is a minimum threshold legal requirement that opens the courthouse doors." Williams v. Davis, 974 So.2d 1052 (Fla.2007).

B. DUTY

The Estate argues that Omnicare owed a legal duty to Mrs. Johnson to use reasonable care consistent with the practice of consultant pharmacists providing comparable pharmaceutical services. "The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader `zone of risk' that poses a general threat of harm to others." McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992). Thus, "where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses." Id. at 503 (citing J.G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45 (Fla.1912)).

Our supreme court has recognized four general sources from which a duty may arise:

(1) legislative enactments or administrative regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of the case.

Clay Elec. Co-op., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003). We begin our discussion of duty by examining the state legislative enactments that require nursing homes to retain the services of a consultant pharmacist. We also examine the administrative licensing regulations for consultant pharmacists. We then consider federal guidelines that require pharmacists to counsel patients and to perform drug regimen review.

(1) Legislative Enactments and Administrative Regulations

The Estate relies in part on the Florida Pharmacy Act, the Florida Administrative Code, and the Omnibus Budget Reconciliation Act of 1990 (OBRA) to demonstrate that Omnicare owed a duty of care. Omnicare contends that these legislative acts fail to establish a legal duty that would support a negligence claim. We agree with Omnicare for the reasons that follow.

a. The Pharmacy Act and the Florida Administrative Code

Florida Statutes and the Florida Administrative Code require a nursing home facility to employ or obtain the services of a state licensed consultant pharmacist. Fla. Admin. Code Ch. 59A-4. Generally, a consultant pharmacist is focused on reviewing the medication regimens of patients who are found in an institutionalized setting such as a nursing home. § 465.0125(1), Fla. Stat. (2001).

The Pharmacy Act defines a "Consultant Pharmacist" as a pharmacist licensed by the Department of Health and "certified as a consultant pharmacist pursuant to s. 465.0125." § 465.003(3), Fla Stat. (2001). In reviewing section 465.0125 for indicia of a legal duty to patients, we observe that it instead imposes certain obligations on the consultant pharmacist concerning proper management of the pharmacy activities within the nursing home facility. "The consultant pharmacist shall be responsible for maintaining all drug records required by law and for establishing drug-handling procedures for the safe handling and storage of drugs." § 465.0125(1).³ This language indicates the role of the consultant pharmacist is largely administrative and is focused on record keeping, inventory, and establishing related procedures for handling medications. Id. Although the consultant pharmacist may analyze laboratory or clinical tests related to nursing home residents, the statute gives the authority to order such tests to the medical director of the facility:

The consultant pharmacist may also be responsible for ordering and evaluating any laboratory or clinical testing when, in the judgment of the consultant pharmacist, such activity is necessary for the proper performance of the consultant pharmacist's responsibilities. Such laboratory and clinical testing may be ordered only with regard to patients residing in a nursing home facility, and then only when authorized by the medical director of the nursing home facility.

§ 465.0125(1).

Further, section 465.003(13) mandates that "nothing in this subsection may be interpreted to permit an alteration of a prescriber's directions, the diagnosis or treatment of any disease, the initiation of any drug therapy, the practice of medicine, or the practice of osteopathic medicine, unless otherwise permitted by law."

The qualifications to become a licensed consultant pharmacist in the administrative regulations also reflect a ministerial role. Promulgated pursuant to the Pharmacy Act, Florida Administrative Code Rule 64B16-26.300, establishes two requirements to become a licensed consultant pharmacist. First,...