Hooks SuperX, Inc. v. McLaughlin, No. 50S03-9411-CV-1067

• Docket Nº: No. 50S03-9411-CV-1067
• Citation: 642 N.E.2d 514
• Case Date: November 09, 1994
• Court: Supreme Court of Indiana

Page 514

642 N.E.2d 514 63 USLW 2332 HOOKS SUPERX, INC., Kathy O'Dell and Craig Merrick,
Defendants-Appellants,
v.
Patrick D. McLAUGHLIN, Michelle McLaughlin, for themselves
and as parents, guardians and next friends of
Patrick Michael McLaughlin, and Alicia
Rose McLaughlin, Minors,
Plaintiffs-Appellees. No. 50S03-9411-CV-1067. Supreme Court of Indiana. Nov. 9, 1994.

Page 515

Anthony DeBonis, Jr., Smith & DeBonis, East Chicago, for appellee.

John C. Hamilton, Doran, Blackmond, Ready, Hamilton & Williams, Robert J. Konopa, Konopa & Murphy, South Bend, for appellant.

ON PETITION TO TRANSFER

SULLIVAN, Justice.

Where a pharmacy customer is having a prescription for a dangerous drug refilled at an unreasonably faster rate than the rate prescribed, the pharmacist has a duty to cease refilling the prescription pending direct and explicit directions from the prescribing physician.

Pharmacy customers, Patrick and Michelle McLaughlin (plaintiffs-appellees below), seek transfer after the Court of Appeals reversed

Page 516

the trial court, which had recognized such a duty, and ordered the entry of summary judgment in favor of Hooks-SuperX, Inc., Kathy O'Dell and Craig Merrick (defendants-appellants below) (collectively "Hooks"). Hook's-SuperX, Inc. v. McLaughlin (1994), Ind.App., 632 N.E.2d 365.

Facts

The following facts are uncontested for purposes of summary judgment. Patrick McLaughlin injured his back while working as a lumberjack in the state of Washington. In the course of treatment for that injury, he became addicted to propoxyphene, the active chemical in the drugs Darvocet and Darvon. He was treated for the addiction in 1982, 1983, and 1987, but he did not stop using the drug. In 1988, because he was still experiencing pain from the injury, he began treatment with Dr. Bernard Edwards in South Bend, Indiana. Over a period of months in 1988, McLaughlin obtained prescriptions for drugs containing propoxyphene from Dr. Edwards. Most of these prescriptions were filled at a Hooks drugstore in South Bend by pharmacists Kathy O'Dell and Craig Merrick. The prescriptions were dispensed either on the basis of written prescriptions from Dr. Edwards brought to Hooks by McLaughlin, telephone calls to the store from the doctor's office, or as refills.

McLaughlin consumed these drugs at a rate much faster than prescribed. Hooks' records show that dozens of prescriptions for Darvocet or Darvon were filled for McLaughlin between May 1987 and December 1988. For example, during one sixty-day period in 1988, McLaughlin received twenty-four separate refills of propoxyphene compounds, totalling 1,072 tablets. If consumed according to the prescription, the number of tablets would have lasted a period of 138 days; McLaughlin consumed the tablets in 62 days, almost two and one half times faster than the prescription ordered. In one month alone, propoxyphene prescriptions were filled twelve times, which means that McLaughlin or his wife appeared in the Hooks store once every two or three days.

In late 1988, after Dr. Edwards apparently became aware that McLaughlin was consuming propoxyphene drugs at a rate much faster than prescribed, he refused to furnish any more prescriptions. Shortly thereafter, McLaughlin's wife found her husband holding a shotgun to his head at a time of depression. He did not pull the trigger. Following treatment for drug addiction in early 1989, McLaughlin stopped taking all prescription pain medication.

The McLaughlins sought recovery against Hooks on the theory that it breached its duty of care by failing to stop filling the prescriptions because the pharmacists knew or should have known that McLaughlin was consuming the drugs so frequently that it posed a threat to his health. Hooks moved for summary judgment on the grounds that it owed no such duty or, alternatively, McLaughlin's consumption of the drugs and his suicide attempt constituted an intervening cause of his injuries. The trial court denied the motion, and at Hooks' request, certified an interlocutory order for appeal of both issues. Ind.Appellate Rule 4(B)(6). A majority of the Court of Appeals concluded that no duty existed and that imposition of a duty would be contrary to public policy because it would undermine the physician-patient relationship. Hook's, 632 N.E.2d at 368. Because of that holding, the Court of Appeals did not reach the issue of causation. The Court of Appeals remanded the case with instructions for the trial court to enter summary judgment in favor of Hooks.

The McLaughlins seek transfer. We address the following issues:

1. Whether pharmacists may be legally obligated to refuse to fill validly-issued prescriptions; and

2. Whether, as a matter of law, McLaughlin's suicide attempt and his over-consumption of prescription drugs was an intervening cause of the alleged injuries.

Standard of Review

This case was resolved by summary judgment for which our standard of review is well-established. The reviewing court faces the same issues that were before the court below and follows the same process. Greathouse

Page 517

v. Armstrong (1993), Ind., 616 N.E.2d 364, 366. Although the party appealing from the grant of summary judgment has the burden of persuading the reviewing court that the entry of summary judgment was erroneous, the reviewing court carefully scrutinizes the decision to assure that the party against whom summary judgment was entered was not improperly prevented from having his day in court. Id. Summary judgment is appropriate only if the pleadings and evidence sanctioned by Indiana Trial Rule 56(C) show "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." T.R. 56(C).

Duty

It is axiomatic that without a duty, there can be no recovery in negligence. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, 995; Miller v. Griesel (1974), 261 Ind. 604, 611, 308 N.E.2d 701, 706. Whether the law recognizes any obligation on the part of a particular defendant to conform his conduct to a certain standard for the benefit of the plaintiff is a question of law exclusively for the court. Gariup Constr. Co. v. Foster (1988), Ind., 519 N.E.2d 1224, 1227. In Webb v. Jarvis, this Court utilized a three-part analysis to be applied when deciding whether a duty exists. Likewise, we will consider (1) the relationship between the parties; (2) the foreseeability of the harm; and (3) public policy issues. 575 N.E.2d at 995.

1. Relationship. It has long been established that the existence of a duty upon one to act with respect to another arises out of the relation between them. Gariup, 519 N.E.2d at 1227-28. That the law recognizes a relationship between pharmacist and customer as one that gives rise to a duty in other circumstances is well-established. See, e.g., Forbes v. Walgreen Co. (1991), Ind.App., 566 N.E.2d 90, 91 (pharmacist liable for dispensing wrong medicine); Ingram v. Hook's Drugs, Inc. (1985), Ind.App., 476 N.E.2d 881, 883 (pharmacist required to inform patient of warnings included in the prescription). Ingram and Forbes recognize a duty on the part of the pharmacist to follow the physician's instructions contained in the prescription. Here, we must determine whether the pharmacist has a duty under certain circumstances to refrain from dispensing the prescription as written.

The relationship between pharmacist and customer is a direct one based upon contract and is independent of the relationship between physician and patient. Our law is replete with instances where privity of contract is a relationship sufficient to form the basis for tort liability. E.g., Erie Ins. Co. v. Hickman (1993), Ind., 622 N.E.2d 515 (insurer/insured); Webb v. Jarvis, 575 N.E.2d 992 (physician/patient); Citizens Gas & Coke Util. v. American Economy Ins. (1985), Ind., 486 N.E.2d 998 (contractor/customer); Dickison v. Hargitt (1993), Ind.App., 611 N.E.2d 691 (landlord/tenant); Reasor v. Putnam County (1994), Ind. 635 N.E.2d 153, reh'g pending (surveyor/customer). It is a matter of common expectation as well as statute ¹ that pharmacists possess expertise regarding the dispensing of prescription drugs. It is a matter of common understanding that customers rely upon pharmacists for that expertise. Upon this basis, we conclude that the relationship between pharmacist and customer is sufficiently close to...