McClure v. Walgreen Co.

• Decision Date: 06 July 2000
• Docket Number: No. 98-1821.,98-1821.
• Citation: 613 N.W.2d 225
• Parties: Shari G. McCLURE, Appellee, v. WALGREEN CO., Appellant, Theresa D. Petersen, Defendant.
• Court: Iowa Supreme Court

613 N.W.2d 225

Shari G. McCLURE, Appellee, v. WALGREEN CO., Appellant, Theresa D. Petersen, Defendant.

No. 98-1821.

Supreme Court of Iowa.

July 6, 2000.

Rehearing Denied August 10, 2000.¹

Kevin M. Reynolds and Richard J. Kirschman of Whitfield & Eddy, P.L.C., Des Moines, for appellant.

Michael H. Figenshaw of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, and Martin E. Spellman and Mark E. Spellman of Spellman, Spellman, Spellman, Spellman, Kealhofer & Spellman, Perry, for appellee.

Considered en banc.

LAVORATO, Justice.

Walgreen Co. appeals from a jury verdict and judgment for punitive damages because of injuries Shari McClure suffered resulting from a prescription misfill error at a Walgreen pharmacy. Shari cross-appeals from the district court's denial of her motion for new trial, or in the alternative, additur, regarding the amount of punitive damages. Walgreen contends there was not sufficient evidence to submit the issue of punitive damages to the jury. Walgreen also challenges an instruction the district court gave on punitive damages and several evidentiary rulings, one of which requires reversal and remand for new trial on punitive damages only. We affirm on all other issues Walgreen raises. The reversal renders moot Shari's cross-appeal, and we therefore do not address it.

I. Background Facts and Proceedings.

In 1995, doctors diagnosed Shari McClure with pancreatic cancer. She underwent a surgical procedure in which doctors removed a substantial portion of her stomach, small intestine, and pancreas.

In 1997, Shari's cancer recurred. She underwent a second surgical procedure. Later, her doctors placed her on a fluorouracil chemotherapy and radiation regimen.

On July 27, 1997, Shari was hospitalized because of nausea and dehydration resulting from her chemotherapy and radiation treatments. Her condition quickly improved, and on July 31, 1997, Shari was released from the hospital.

After her release from the hospital, one of Shari's daughters, Deb McClure, went to the Walgreen Pharmacy on Ingersoll Avenue in Des Moines to pick up three prescriptions for her mother: Diflucan, Kytril, and Pepcid. Diflucan is used to treat yeast infection caused by chemotherapy and radiation treatments. Kytril is an antinausea medication. Pepcid controls the production of stomach acid. Dr. Thomas Buroker, Shari's oncologist, prescribed Pepcid to protect her stomach from stomach acid and thereby decrease her nausea and increase her appetite.

When Deb brought the prescriptions in, the Walgreen pharmacy staff prepared a pill vial labeled "Pepcid, 20mg tablets . . . 1 tablet by mouth twice daily." Rather than filling the pill vial with Shari's prescription for Pepcid, however, the Walgreen pharmacy staff erroneously gave Shari sixty 20mg tablets of Paroxetine Hydrochloride. Paxil, the brand name for this drug, is a selective serotonin reuptake inhibitor. The drug is used to treat obsessive-compulsive disorders, panic disorders, and depression. Even when taken in commonly recommended starting dosages of 10 milligrams per day, the drug can cause dizziness, confusion, achalasia (inability to sit still), nausea, and other mental status changes.

Shari took the 20mg tablets of Paxil approximately twice daily (as had been prescribed for the Pepcid) from July 31, 1997, to August 28, 1997. (The remaining pills in the bottle indicated she missed taking the drug twice daily on several occasions.) During this time, Shari exhibited increased irritability, weakness, confusion, and inattention to hygiene. On August 18, 1997, Dr. Buroker, unaware of the medication dispensing error, prescribed Zoloft, an antidepressant, to control Shari's behavior. On August 22, the doctor suspended use of Zoloft because Shari was exhibiting very low blood pressure.

On August 23, 1997, Shari had gotten up to go to the bathroom, became dizzy, and fell. As a result of the fall, she suffered fractures in her right leg and left foot. Medical testimony attributed the fall to the changes in her mental status and equilibrium brought on by her ingestion of Paxil.

Because of her injuries, Shari was admitted to Wesley Acres Retirement Home on August 26, 1997. One of Shari's daughters brought Shari's medications (including the Paxil) to the retirement home. The nurses at the retirement home continued to administer the Paxil pills to Shari until one of the nurses finally discovered the error on August 28, 1997. The retirement home immediately notified Shari's internist, Dr. John Yost, of the error. Dr. Yost ordered that Shari stop taking the Paxil medication immediately.

The retirement home also notified Shari's family of the error. Shari's daughter-in-law, Lynette McClure, notified Walgreen of the error. Walgreen's response was that an incident report had to be filed. At no time, however, did Walgreen discuss the side effects of Paxil with the family or warn of potential withdrawal problems associated with the abrupt discontinued use of the drug.

On September 9, 1997—the day Shari was to be released from the retirement home—she fell again because of dizziness. This time she suffered injuries to her head, back, and pelvis. Medical testimony attributed this fall to symptoms of a withdrawal syndrome associated with the abrupt discontinuance of Paxil.

On October 2, 1997, Shari sued Walgreen for compensatory damages and later added as a defendant, Theresa D. Petersen, the pharmacist on duty at the time the error was made. Shari alleged the two defendants were negligent and their negligence caused her fall and injuries. Later, Shari added a count for punitive damages against both defendants.

A jury returned a verdict for compensatory damages against both defendants in the amount of $100,000. The jury also returned a verdict of $150,000 against Walgreen alone for punitive damages. Walgreen paid the compensatory damage award and has appealed only from the punitive damage award. Shari has cross-appealed.

On appeal, Walgreen contends there was insufficient evidence to submit punitive damages. Walgreen also challenges a punitive-damage instruction submitted to the jury and two evidentiary rulings. One of these evidentiary rulings concerns the admission of certain incident reports. The other concerns licensee disciplinary proceedings in connection with the incident.

In her cross-appeal, Shari contends the district court abused its discretion in denying her motion for new trial or in the alternative, her additur, regarding the amount of punitive damages.

II. Issues.

A. Punitive damages.

1. Sufficiency of the evidence. Walgreen contends here as it did in its motion for directed verdict that the evidence was insufficient to establish a willful and wanton disregard for the rights and safety of another. At best, Walgreen contends, the evidence supports nothing more than a simple mistake. Therefore, Walgreen concludes, the district court erred in submitting the punitive-damages issue to the jury. Not surprisingly, Shari argues there is overwhelming evidence supporting the submission of this issue to the jury.

We review a ruling denying a motion for directed verdict for correction of errors at law. Iowa R.App. P. 4; see James ex rel. James v. Burlington Northern, Inc., 587 N.W.2d 462, 464 (Iowa 1998)

. When reviewing such rulings, we view the evidence in the same light as the district court to determine whether the evidence generated a jury question on the issue. Heick v. Bacon, 561 N.W.2d 45, 47 (Iowa 1997).

A directed verdict is not appropriate if the party against whom the motion is made has presented substantial evidence on each element of the claim. Id. Under this standard, the district court must submit the issue to the jury if reasonable minds could disagree on it in light of the evidence presented. Id. Even if certain facts are not in dispute, a jury question exists if reasonable minds might draw different inferences from those facts. Iowa R.App. P. 14(f)(17).

When ruling on a motion for directed verdict, the district court must view the evidence in the light most favorable to the party against whom the motion is made. Iowa R.App. P. 14(f)(2). A party moving for a directed verdict is considered to have admitted the truth of all evidence offered by the other party as well as every favorable inference that may fairly and reasonably be deduced from it. Heick, 561 N.W.2d at 47.

Iowa Code section 668A.1 (1997) sets the standard for awarding punitive damages:

a. Whether, by a preponderance of clear, convincing, and satisfactory evidence, the conduct of the defendant from which the claim arose constituted willful and wanton disregard for the rights or safety of another.

We have defined "willful and wanton" in the context of this statute to mean that

"[t]he actor has intentionally done an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences."

Fell v. Kewanee Farm Equip. Co., 457 N.W.2d 911, 919 (Iowa 1990) (quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 34, at 213 (5th ed.1984)).

Punitive damages serve "as a form of punishment and to deter others from conduct which is sufficiently egregious to call for the remedy." Coster v. Crookham, 468 N.W.2d 802, 810 (Iowa 1991). Mere negligent conduct is not sufficient to support a claim for punitive damages. Beeman v. Manville Corp. Asbestos Disease Compensation Fund, 496 N.W.2d 247, 256 (Iowa 1993). Such damages are appropriate only when actual or legal malice is shown. Schultz v. Security Nat'l Bank, 583 N.W.2d 886, 888 (Iowa 1998).

Actual malice is characterized by such factors as personal spite, hatred, or ill will. Id. Legal malice is shown by wrongful conduct committed or continued with a willful or reckless disregard for another's rights. Id.

We agree with Shari that the evidence in this case was not...