Laws v. Johnson
| Decision Date | 17 July 1990 |
| Docket Number | No. 209,209 |
| Citation | 799 S.W.2d 249 |
| Parties | Paul I. LAWS and wife, Lassie L. Laws, Plaintiffs-Appellants, v. John C. JOHNSON, Jr., M.D., Johnson City Eye Clinic, Franklin State Corporation d/b/a the Johnson City Eye and Ear Pharmacy, Hospital Corporation of America d/b/a the Johnson City Eye and Ear Pharmacy, Suzanne Langdon, James E. Snyder, Joseph J. Wallen, Larry Calhoun, Altajane H. Caudill, and Merck and Company, Inc., Acting through its Merk, Sharp and Dohme Division, Defendants-Appellees. 799 S.W.2d 249 |
| Court | Tennessee Court of Appeals |
Howard R. Dunbar, Dunbar & Dunbar, Johnson City, for plaintiffs/appellants.
J. Paul Coleman, H. Wayne Graves, Johnson City, for appellees The Johnson City Eye and Ear Pharmacy, Suzanne Langdon, James E. Snyder, Joseph J. Wallen and Altajane H. Caudill.
Plaintiffs have appealed from a summary judgment in their suit against four pharmacists who, Plaintiffs alleged, were guilty of negligence in dispensing prescription drugs.
In 1979 Defendant Dr. John C. Johnson issued to Plaintiff-Appellant Paul I. Laws a prescription for a drug called Timoptic. The purpose of the drug was treatment of glaucoma from which Mr. Laws was suffering. Mr. Laws took the prescription to the Defendant, Johnson City Eye and Ear Pharmacy, and had it filled. Timoptic is manufactured by Defendant Merck and Company, Inc. It is a liquid eye drop medication in a small plastic bottle. The bottle is packaged in a small cardboard box along with a printed insert. The insert contains two full pages of extremely fine print detailing in technical and scientific terminology which, for the most part, could be interpreted and comprehended only by persons skilled in the medical pharmaceutical or chemical fields. It details the chemical make-up of Timoptic, the results of experimental usage, and such germane topics as overdosage, how supplied, description, clinical pharmacology, contraindications, warnings, precautions, animal studies, carcinogenesis, mutagenesis, impairment of fertility, major surgery, drug interactions, pregnancy (pregnancy category C), nursing mothers, pediatric use, adverse reactions, body as a whole, headache, cardiovascular, nervous system, skin, respiratory, endocrine, etc. From 1979 until June, 1985, each time Mr. Laws had his prescription filled, the pharmacist who filled his prescription removed the printed insert from the package.
In July, 1984, Mr. Laws had a heart attack. Between July and November he had three attacks and was then terminated from his employment because of his disability.
In June or July, 1985, Mr. Laws purchased some Timoptic from which the printed inserts had not been removed. Apparently, after reading the insert in the Timoptic package Mr. Laws went to the Johnson City Eye and Ear Pharmacy and inquired as to why the package inserts were not in the boxes containing the Timoptic he had purchased previously. He was told, in effect, the inserts were always removed. He then talked to Dr. Johnson about the matter to inquire if taking Timoptic could have been a contributing factor in his heart attacks. Dr. Johnson informed him something to the effect, "It is very rare that Timoptic causes heart problems," and advised him to continue using it. Mr. Laws last visited Dr. Johnson in April or May, 1986, at which time Dr. Johnson advised him to continue using Timoptic.
In July, 1986, Mr. Laws and his wife filed suit against the Defendants. They alleged Dr. Johnson and Johnson City Eye Clinic, P.C., were guilty of medical malpractice. They alleged Franklin State Corporation d/b/a The Johnson City Eye and Ear Pharmacy, Hospital Corporation of America d/b/a Johnson City Eye and Ear Pharmacy, and Defendants-Appellees, pharmacists Suzanne Langdon, James E. Snyder, Joseph J. Wallen, Larry Calhoun, and Altajane H. Caudill, were guilty of negligence. The complaint, as pertinent here, alleged:
The complaint against Defendant Merck and Company, Inc., alleged Timoptic was defective and unreasonably dangerous.
Subsequently the suit was dismissed or nonsuit was taken as to all Defendants except Johnson City Eye and Ear Pharmacy, Suzanne Langdon, James E. Snyder, Joseph J. Wallen, Larry Calhoun, and Altajane H. Caudill. They all filed a motion for summary judgment which was sustained by the trial court and the Laws have appealed, saying the court was in error. We cannot agree for the reasons hereinafter stated.
This case, having been disposed of on summary judgment Rule 56, T.R.C.P., we must look to the pertinent provisions of that rule as they relate to the case at bar. Rule 56.03, as pertinent here, provides: "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In Moman v. Walden, 719 S.W.2d 531 (Tenn.App.1986) this court, in addressing what a plaintiff must do to withstand summary judgment under the rule, said:
Under Rule 56.03, upon motion, summary judgment shall be entered against a party who failed to make a showing sufficient to establish the existence of an essential element to that party's case and on which the party will bear the burden of proof at trial. If the non-moving party fails to establish the existence of an essential element, there can be no genuine issue as to any material fact since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
719 S.W.2d at 533. Also see Stanley v. Joslin, 757 S.W.2d 328, 330 (Tenn.App.1987). The Plaintiffs have totally failed to meet this criterion.
The Defendants filed a motion for summary judgment, insisting there was no genuine issue of material fact and Defendants were free of any professional negligence. In support of the motion they filed the affidavits of four of the pharmacists, Susan Langdon, James E. Snyder, Joseph J. Wallen, and Altajane Caudill. They also relied upon the affidavits of Dr. Johnson and Dr. Stanley Vermillion. As pertinent here, the affidavit of Mr. Wallen states: The affidavits of the other pharmacists were to the same effect. The affidavits also stated the pharmacists all adhered to the acceptable standards of pharmaceutical care in dispensing the Timoptic to Mr. Laws as the physician ordered and without deviation or departure from such standard.
The affidavit of Dr. Johnson established that during his treatment of Mr. Laws from October, 1978, through June, 1986, he continuously prescribed Timoptic for the control of his severe chronic open angle glaucoma. Also, during that time he was familiar with and aware of the information contained in the package inserts removed by the pharmacists. It was undisputed that without the treatment of Mr. Laws by Dr. Johnson with Timoptic Mr. Laws would have lost his vision in both eyes. Dr. Johnson was familiar with all the side effects described in the literature inserts in the packages but it was a judgment call by Dr. Johnson to use Timoptic to save Mr. Laws's eyesight. The only other alternative was surgery, with its attendant risk of causing loss of sight.
In considering the issue at bar it is necessary to recognize there is one body of the law relating to "proprietary or patent medicine" and the other relating to "ethical drugs" dispensed only by prescription. In dispensing "proprietary or patent" medicine all warnings relating to the use of the drug must be given to the consumer of the drug. In dispensing "ethical or prescription" drugs all warnings relating to the use of the drug must be given to the doctor or physician...
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