Gordon v. Frost, s. A89A1494
| Decision Date | 26 October 1989 |
| Docket Number | A89A1495,Nos. A89A1494,s. A89A1494 |
| Citation | 388 S.E.2d 362,193 Ga.App. 517 |
| Parties | GORDON et al. v. FROST et al. FROST et al. v. GORDON et al. |
| Court | Georgia Court of Appeals |
John C. Parker, Atlanta, Jennifer H. Chapin, for appellants.
Hart & Sullivan, Lawrie E. Demorest, Rush S. Smith, Jr., Atlanta, for appellees.
This appeal and cross-appeal follow a jury trial in this suit by Mr. and Mrs. Gordon against Thrift Drug Company d/b/a Treasury Drug, pharmacist Frost, and pharmacist/manager Benton, alleging intentional infliction of emotional distress, malicious prosecution, false imprisonment, negligence, and loss of consortium as a result of Mrs. Gordon's arrest at the pharmacy for violation of the Georgia Controlled Substances Act by fraudulently attempting to obtain a controlled substance via the telephone, OCGA § 16-13-32.3.
During trial, the court directed a verdict in favor of defendant Benton on all causes of action and directed a verdict for the remaining defendants on the false imprisonment and negligence counts. The jury found in favor of defendants on the cause of action for malicious prosecution but in favor of plaintiffs on their claims of intentional infliction of emotional distress and loss of consortium; the jury returned a verdict for Mrs. Gordon for $200,000 general damages and for Mr. Gordon in the amount of $20,000. Judgment was entered accordingly.
Defendants Frost and Thrift Drug Company d/b/a Treasury Drug moved for judgment notwithstanding the verdict and/or in the alternative, for new trial. The trial court granted the motion for judgment notwithstanding the verdict and denied the motion for new trial.
In Case No. A89A1494, Mr. and Mrs. Gordon appeal the judgment in favor of defendants notwithstanding the verdict, contending that there was sufficient competent evidence before the jury to support the verdict in their favor and that judgment for defendants was not demanded as a matter of law. In the alternative, they cite error in the court's direction of verdicts during the course of trial, its consequent refusal of requests to charge on the theories of recovery removed from the case, and the court's alleged undue emphasis in charging the jury on the element of lack of probable cause in regard to the claim of malicious prosecution. In Case No. A89A1495, Frost and the drug company cross-appeal the denial of their motion for new trial on the general grounds.
1. " Hiers-Wright Assoc. v. Manufacturers Hanover Mtg. Corp., 182 Ga.App. 732(2), 356 S.E.2d 903 (1987). See also Pendley v. Pendley, 251 Ga. 30(1), 302 S.E.2d 554 (1983).
Viewing the evidence in the light most favorable to plaintiffs, it showed the following. On March 17, 1986, Mrs. Gordon awoke with a migraine headache. After unsuccessfully attempting to sleep it away, she decided to take some prescribed Fiorinal # 3 with Codeine. The doctor had given Mrs. Gordon four such prescriptions, two or three of which had been refillable. Mrs. Gordon would go about refilling prescriptions by telephoning the Treasury Drug store where she had been a customer for over four years. During that time Mrs. Gordon had had to have numerous prescriptions filled at the drug store for a variety of suffered conditions, including the migraine headaches. She was on a first-name basis with store pharmacists Benton and Frost and recognized their voices on the telephone. Mrs. Gordon believed that the pharmacists recognized her voice as well because they would refer to her by her first name when she called. Frost had known Mrs. Gordon for over two years and had filled such a Fiorinal prescription for her on several occasions.
When Mrs. Gordon went to take the Fiorinal for her headache, she discovered that she had no medication left and called the drug store to obtain some. An assistant/intern pharmacist, whose voice Mrs. Gordon did not recognize, answered the telephone. Mrs. Gordon stated, "I am calling to renew a prescription for Gail Gordon." The intern asked the name of the prescription and the prescribing physician and Mrs. Gordon responded accordingly. The intern then asked if the prescription was refillable or renewable. Mrs. Gordon responded that she did not know. The intern asked how many pills had been prescribed and Mrs. Gordon requested that the intern hold on while she got the empty prescription bottle. Mrs. Gordon brought the pill container with her to the telephone, read off that twelve pills had been prescribed and responded further to the intern's question about dosage. When Mrs. Gordon was asked to supply the doctor's "DEA number (Drug Enforcement Administration)" she responded she did not have that information, told the intern to call the doctor's office to get the DEA number from one of the nurses, and supplied the prescribing physician's telephone number.
The intern pharmacist informed Mrs. Gordon that they could not fill the prescription without the doctor's DEA number and put her on hold. The call was taken over by pharmacist Frost, whose voice Mrs. Gordon recognized. Frost reiterated that they could not fill the prescription without the DEA number. Mrs. Gordon again stated that she did not have the number, that it should be gotten from the doctor's office, and that she had given the doctor's telephone number to the woman she had first spoken with. Frost told Mrs. Gordon that the pharmacy was very busy and they would do the best they could, but that it would take awhile. Mrs. Gordon thanked Frost and ended the call. At no time during the conversation with the intern and Frost did Mrs. Gordon say she was calling from the prescribing physician's office. Nor was she asked her identity or if she was calling from the doctor's office.
In Frost's experience, it was not unusual for an employee of a doctor's office to call in a prescription for the doctor without realizing it required a DEA number. Apparently believing that the caller requesting Fiorinal was a representative from Mrs. Gordon's physician's office, Frost called the doctor's office to inquire about the prescription but everyone at the office was out to lunch.
Approximately two hours later, Mrs. Gordon called the pharmacy, identified herself and asked whether or not her prescription was ready. She was told that it would be ready in a couple of minutes, by the time of her arrival. In the meantime, Frost spoke with the prescribing physician's office and learned that no one from the office had recently prescribed Fiorinal # 3 with Codeine for Mrs. Gordon. Frost did not inquire further as to whether or not the doctor would have permitted the prescription, did not check the store computer to see the status of the Fiorinal prescription, and did not call Mrs. Gordon to attempt to clarify the situation. Mrs. Gordon's physician did not believe Mrs. Gordon abused the prescribed medications and probably would have refilled the Fiorinal prescription.
Prior to this incident, Frost had stated to the intern pharmacist that Mrs. Gordon was a hypochondriac and took a lot of medication. After learning that the initial call had not come from the doctor's office, Frost reached the conclusion that Mrs. Gordon was attempting to fraudulently acquire the prescription. Consequently, Frost called the DEA to report her suspicion. The DEA told Frost they would send someone to take care of the situation and instructed her to try to keep Mrs. Gordon at the store.
Mrs. Gordon arrived at the pharmacy, identified herself to the intern and stated that she was there to pick up her prescription. She was told she would have to wait. She spoke briefly to Frost about some other medication that Frost had sold her the week before. Shortly thereafter, a police officer arrived and arrested Mrs. Gordon for violation of the Georgia Controlled Substances Act.
Mrs. Gordon was shocked, upset, and hysterical, and at first could not understand why she was being arrested. She asked to contact her husband and her physician. Another customer observed Mrs....
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