Kowalski v. Rose Drugs of Dardanelle, Inc.

• Decision Date: 09 February 2011
• Docket Number: No. 10–459.,10–459.
• Citation: 378 S.W.3d 109,2011 Ark. 44
• Parties: Virginia KOWALSKI, Individually and as Special Administratrix of the Estate of Kevin Allen Curry, Deceased, and on behalf of the Statutory Beneficiaries of the Estate of Kevin Allen Curry, Appellant v. ROSE DRUGS OF DARDANELLE, INC. and Randeep Mann, M.D., Appellees.
• Court: Arkansas Supreme Court

2011 Ark. 44

378 S.W.3d 109

Virginia KOWALSKI, Individually and as Special Administratrix of the Estate of Kevin Allen Curry, Deceased, and on behalf of the Statutory Beneficiaries of the Estate of Kevin Allen Curry, Appellant

v.ROSE DRUGS OF DARDANELLE, INC. and Randeep Mann, M.D., Appellees.

No. 10–459.

Supreme Court of Arkansas.

Feb. 9, 2011.

Todd L. Griffin, Little Rock, for appellants.

Anderson, Murphy & Hopkins, L.L.P., Little Rock, by: Scott D. Provencher and Brett D. Watson, for appellee Rose Drugs of Dardanelle, Inc.

Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for amicus curiae Arkansas Trial Lawyers Association.

DONALD L. CORBIN, Justice.

Appellant Virginia Kowalski, individually and as special administratrix of the Estate of Kevin Allen Curry, deceased, and on behalf of the statutory beneficiaries of the Estate of Kevin Allen Curry (“the Estate”), appeals from the circuit court's order granting summary judgment to Appellee Rose Drugs of Dardanelle, Inc. (“Rose Drugs”). On appeal, the Estate argues that the circuit court erred in concluding that Rose Drugs, as a pharmacy, had no general duty to warn, to not fill dangerous prescriptions, and to inquire of a prescribing physician. As this is a second appeal, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1–2(a)(7) (2010).¹ We find no error and affirm.

The facts as alleged in the complaint reveal the following. On August 24, 2005, Kevin Allen Curry was found dead in his home in Dardanelle, Arkansas. Following an autopsy, his cause of death was ruled “mixed drug intoxication” combined with alcohol. Four days prior to his death, Curry saw Dr. Randeep Mann ² for generalized facial pain resulting from a blast to the face. Dr. Mann prescribed Curry several medications, including Norflex, Zoloft, Valium, Oxycontin, Percocet, Lorazepam, Methadone, Propoxyphene, and Doxepin.³ At the time that Curry saw Dr. Mann, he was already taking Percocet, Valium, Ambien, Trazodone, Norflex, Zoloft, Effexor, and Oxycontin. Curry had the prescriptions written by Dr. Mann filled at Rose Drug, a pharmacy owned by Appellee Rose Drugs, on August 22, 2005.

The Estate filed a wrongful-death action against Rose Drugs and Dr. Mann. It asserted therein that Dr. Mann was liable for wrongful death by his “failure to properly treat Kevin Curry and negligent prescribing of numerous medications without regard to the ramifications of those multiple prescription medications.” The Estate further asserted a wrongful-death action against Rose Drugs for its “failure to properly monitor and negligent filling of numerous medications without regard to the ramifications of the multiple prescriptions.” The Estate sought compensatory damages, punitive damages as against Dr. Mann, costs, postjudgment interest, and all other just and proper relief.

Rose Drugs, in its answer, admitted filling certain prescriptions for Curry, but denied the other allegations in the complaint. It subsequently filed a motion for summary judgment, asserting that the Estate's lawsuit raised a threshold question of “the scope of a pharmacist's duty to a customer in the dispensing of prescription medications.” In seeking summary judgment, Rose Drugs relied on the decision in Kohl v. American Home Products Corp., 78 F.Supp.2d 885, 893 (W.D.Ark.1999), wherein the Arkansas federal district court held that “pharmacies generally have no common-law or statutory duty to warn customers of the risks associated with the prescription drugs they purchase.” Thus, Rose Drugs argued that the scope of its “duty under Arkansas law did not include the duty to warn Mr. Curry regarding the risks associated with the prescription medications he purchased or the duty to decline to dispense the medications prescribed by Dr. Mann.”

In its response to the motion for summary judgment, the Estate argued that Rose Drugs had a duty to act carefully and that it did not do so. The Estate contended, alternatively, that there was an issue of whether the pharmacy assumed a duty in this case. Rose Drugs then replied that “[t]he duty proposed by plaintiff will require all pharmacies in Arkansas to interfere directly with the physician-patient relationship in order to avoid being held liable for performing their profession correctly.”

On September 15, 2008, the circuit court held a hearing on Rose Drugs's motion for summary judgment. At the conclusion of the hearing, the circuit court ruled from the bench as follows:

I am finding for the defendant, Rose Drugs. There is no substantial issue of material fact under the Kohl decision, no duty other than to fill the prescription as prescribed and properly label it, and I am going to grant the summary judgment to Rose Drugs, and, again, I am relying heavily or heartily on the Kohl decision and I can understand you might want to take that up and I would certainly invite you to do so.

On September 29, 2008, the circuit court entered its order granting Rose Drugs summary judgment. This appeal followed.

At the outset, we note that the issue in this case is whether Rose Drugs owed Curry a duty to warn about the medications prescribed by Dr. Mann or to refuse to fill those prescriptions. This court has stated that the question of what duty, if any, is owed a plaintiff alleging negligence is always a question of law and never one for the jury. Marlar v. Daniel, 368 Ark. 505, 247 S.W.3d 473 (2007). A trial court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated and that the party is entitled to judgment as a matter of law. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179. Once the moving party has established a prima facie case showing entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Young v. Gastro–Intestinal Ctr., 361 Ark. 209, 205 S.W.3d 741 (2005). On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Mitchell v. Lincoln, 366 Ark. 592, 237 S.W.3d 455 (2006). This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. This review is not limited to the pleadings but also includes the affidavits and other documents filed by the parties. Brock, 2009 Ark. 224, 309 S.W.3d 179.

On appeal, the Estate argues that the circuit court erred in granting summary judgment in favor of Rose Drugs based on its conclusion that Rose Drugs owed no duty to Curry to reject the prescriptions written by Dr. Mann and had no duty to warn Curry of risks associated with those prescriptions. According to the Estate, the question of duty is dependent upon the foreseeability of injury and, here, Rose Drugs had a duty to foresee injury to Curry from improper dispensation of medications that were contraindicated. In advancing its argument, the Estate asserts that Rose Drugs owed Curry a duty to warn him about the dangers of the medications prescribed or should have refused to fill them because certain regulations governing pharmacies established such a duty, otherwise known as a duty by regulation. The Estate then cites to several different regulations and argues that Rose Drugs violated each regulation and thereby breached its duty to Curry. Alternatively, the Estate argues that under the particular facts of this case, a duty to warn or to not fill the prescriptions arose, even if a general no-duty rule exists.

Rose Drugs counters that the Estate misinterprets the circuit court's ruling. According to Rose Drugs, the circuit court did not rule that it owed no duty to Curry; rather, the circuit court ruled that Rose Drugs had no duty to warn about the prescriptions written by Dr. Mann, nor was it required to refuse to fill the prescriptions that were properly written. According to Rose Drugs, the instant appeal presents a purely legal question of duty; specifically, whether it owed Curry a duty to warn him regarding the risks. It further contends that the learned-intermediary doctrine requires us to reject the Estate's proposed duty for pharmacists, as the duty to warn in this case was with Dr. Mann.⁴

I. Duty

The question of what is a pharmacist's duty in Arkansas is an issue of first impression for this court. Nevertheless, in any action for medical injury, the plaintiff must prove the applicable standard of care; that the medical provider failed to act in accordance with that standard; and that such failure was a proximate cause of the plaintiff's injuries. See Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002). More specifically, to prove negligence in Arkansas, the plaintiff must show a failure to exercise proper care in the performance of a legal duty, which the defendant owed the plaintiff under the circumstances. Marlar, 368 Ark. 505, 247 S.W.3d 473;Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997). We explained in Marlar, 368 Ark. at 508, 247 S.W.3d at 476, that

[t]he law of negligence requires as essential elements that the plaintiff show that a duty was owed and that the duty was breached. The question of what duty, if any, is owed a plaintiff alleging negligence is always a question of law and never one for the jury.

(Citations omitted.) Thus, the law of negligence requires as an essential element that the plaintiff show that a duty of care was owed.

Young, 361 Ark. 209, 205 S.W.3d 741;Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994).

Duty is a concept that arises out of the recognition that relations between individuals may impose upon one a legal obligation for the other. Marlar, 368 Ark. 505, 247 S.W.3d 473;see also William L. Prosser, Handbook on the Law of Torts § 42, at 244 (4th ed.1971). If no duty of care is owed, summary judgment is appropriate. Young, 361 Ark. 209, 205 S.W.3d 741. As...