Moore ex rel. Moore v. Memorial Hosp. of Gulfport
| Decision Date | 05 September 2002 |
| Docket Number | No. 2000-CA-01976-SCT.,2000-CA-01976-SCT. |
| Citation | 825 So.2d 658 |
| Parties | Charlisia MOORE, a Minor, By and Through Charles MOORE and Daisy Moore, her Natural Parents, Guardians and Next Friends, Charles Moore, Individually, and Daisy Moore, Individually v. MEMORIAL HOSPITAL OF GULFPORT and Winn-Dixie Louisiana, Inc. |
| Court | Mississippi Supreme Court |
Andrew W. Hutton, Wichita, KS, Wynn E. Clark, Gulfport, Anne M. Hull, Anne H. Pankratz, Wichita, KS, attorneys for appellants.
William Wyatt Simmons, William M. Rainey, Roland F. Samson, III, Matthew Forte Powers, Gulfport, attorneys for appellees.
EN BANC.
ON MOTION FOR REHEARING
WALLER, J., for the Court.
¶ 1. The motion for rehearing filed by Charlisia Moore and her parents, Daisy and Charles Moore, is denied.
¶ 2. The Court grants its sua sponte motion for rehearing, the prior opinion is withdrawn, and these opinions are substituted in its place.
¶ 3. Daisy and Charles Moore, parents of the minor child Charlisia Moore, brought this civil action against the physicians who treated Daisy during her pregnancy with Charlisia, the hospital which provided care to Daisy during her pregnancy and delivery and to Charlisia after she was delivered, and the pharmacy which dispensed certain medications to Daisy during her pregnancy. They filed this appeal from the grant of summary judgment to the hospital and to the pharmacy. We affirm the circuit court's grant of summary judgment to the pharmacy. We reverse and remand the grant of summary judgment to the hospital.
FACTS
¶ 4. While pregnant with Charlisia, Daisy was under the care of Maria Moman, M.D. Daisy had a history of labile hypertension and anemia. Early in her pregnancy, as the result of the hypertension, Daisy was hospitalized at Memorial Hospital in Gulfport, Mississippi, from February 12 to February 24, 1997. During Daisy's hospitalization, Dr. Moman consulted with Joseph L. Faison, M. D., who prescribed Aldomet, 250 mg every eight hours, along with vitamins and iron. After her discharge, Daisy had her prescription for Aldomet filled by the Winn-Dixie Pharmacy in Long Beach, Mississippi.
¶ 5. During her pregnancy, the dosage of Aldomet was adjusted by Dr. Moman. On March 6, 1997, Dr. Moman increased the dosage to 500 mg every eight hours. On April 17, 1997, Dr. Moman increased the dosage to 500 mg six times a day.
¶ 6. On May 19, 1997, Dr. Faison prescribed Diovan, 80 mg once per day. A notation in her medical records dated May 2, 1997, indicates that Daisy was taking 100 mg of Diovan once a day, and on June 12, 1997, a prescription was filled for Diovan, 80 mg, once a day. On July 3, 1997, the date of Charlisia's delivery, the medical records show that Daisy was taking 80 mg of Diovan each day. The Winn-Dixie Pharmacy, owned and operated by Winn-Dixie Louisiana, Inc., filled the Diovan prescription for Daisy.
¶ 7. Charlisia's delivery was unremarkable, but on July 7, 1997, she became cyanotic1 and had an episode of apnea.2 She was admitted to Memorial Hospital with a diagnosis of apnea/rule out gastroesophageal reflux. Charlisia developed respiratory distress, went into cardiopulmonary arrest, was noted to be hyperkalemic,3 hypoatremic4 and hypocalcemic,5 and was transferred to the Neonatal Intensive Care Unit. She was later transferred to Tulane Memorial Hospital with an admitting diagnosis of acute renal failure. Discharge diagnosis was end stage renal disease, secondary to maternal treatment with angiotensin II receptor blocker for hypertension during third trimester of pregnancy.
¶ 8. Charlisia now has a diagnosis of end stage kidney failure and needs a kidney transplant. She was on dialysis until January, 1998. She has hypertension and is not growing at a normal rate. She cannot eat any solids because she has a hyperactive gag reflex.
¶ 9. The Moores allege that Diovan caused Charlisia's kidney failure and that Dr. Moman and Dr. Faison were negligent in their care of Daisy by prescribing a drug which is known to cause renal failure in exposed fetuses. The Moores allege that Memorial Hospital was negligent in its care and treatment of Daisy and Charlisia by failing to monitor adequately Charlisia after her delivery and by failing to be aware of any potential danger caused by Daisy's ingestion of the Diovan. Finally, they allege that Winn-Dixie was negligent by selling a drug which was contraindicated for pregnant women.
¶ 10. Winn-Dixie filed a motion for summary judgment, stating that it accurately filled the medication in accordance with valid prescriptions from her treating physicians, that, pursuant to the learned intermediary doctrine,6 it was under no duty to advise Daisy of possible side effects of the medication or to second guess the appropriateness of the prescription, and that this was the duty of her treating physicians.
¶ 11. The circuit court granted Winn-Dixie's motion for summary judgment, finding that (1) actionable negligence cannot exist in the absence of a legal duty; (2) the learned intermediary doctrine has been adopted by this Court; (3) the learned intermediary doctrine has been extended to pharmacists by an overwhelming majority of states; (4) a pharmacist does not have a legal duty to question the judgment made by a prescribing physician; (5) Winn-Dixie accurately filled the prescriptions at issue; (6) alleged violations of the State Board of Pharmacy's internal regulations did not give rise to an independent cause of action for damages and the regulations did not define the legal duty of care of a pharmacist; (7) Winn Dixie did not recommend a medication to Daisy, substitute a drug comparable to the one prescribed, or observe an excessive dosage or potency of the drug on the face of the prescription; and (8) the affidavit of the Moore's expert pharmacist did not create an issue of fact.
¶ 12. Memorial Hospital also filed a motion for summary judgment, claiming that the claims against it were barred by the one-year statute of limitations (Miss.Code Ann. § 11-46-11(1) and (2) (2002)), and that the Moores wholly failed to comply with the mandates of the Mississippi Tort Claim Act ("MTCA") (Miss.Code Ann. §§ 11-46-1 et seq. (2002)). It averred that (1) Memorial Hospital was a community hospital as defined in § 11-46-1, et seq.; (2) Daisy and Charlisia were treated by Memorial Hospital in February, March, May, June and July of 1997; (3) the Moore's complaint was not filed until December, 1998; (4) the Moores did not serve Memorial Hospital with a notice of claim letter as required by § 11-46-11(1), so the circuit court dismissed Memorial Hospital without prejudice in May of 1999; (5) the Moores served a notice of claim letter on Memorial Hospital in June, 1999; and (6) the Moores' first amended complaint naming Memorial Hospital as a defendant was filed in December of 1999.
¶ 13. The circuit court granted Memorial Hospital's motion for summary judgment, finding that Memorial Hospital was a "governmental entity" as set forth in § 11-46-11(1); and using any one of three possible dates for the accrual of the Moores' cause of action,7 the Moores' claims against Memorial Hospital were barred by the one-year statute of limitation.
¶ 14. The summary judgments for Winn-Dixie and Memorial Hospital were certified as final judgments under M.R.C.P. 54(b). The Moores appeal the circuit court's grant of summary judgment to Winn-Dixie and Memorial Hospital.
STANDARD OF REVIEW
¶ 15. The standard for reviewing the granting or denying of summary judgment is the same standard as is employed by a trial court under Miss. R. Civ. P. 56(c). We conduct a de novo review of orders granting or denying summary judgment and examine all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996).
¶ 16. We will not reverse the trial court's decision unless it appears that triable issues of fact remain when the facts are viewed in the light most favorable to the nonmoving party. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (Miss.1999). The summary judgment motion is the only pretrial motion which allows the Court to "go behind the pleadings" and consider evidence such as admissions, answers to interrogatories, depositions, and affidavits. Lattimore v. City of Laurel, 735 So.2d 400, 402 (Miss.1999). If this examination indicates there is no genuine issue of material fact, the moving party is entitled to a judgment as a matter of law. Id. (citing Newell v. Hinton, 556 So.2d 1037, 1041-42 (Miss.1990)).
¶ 17. While the motion for summary judgment is designed to expose "sham" claims and defenses, it should not be used to circumvent a trial on the merits where there are genuine issues of material fact. M.R.C.P. 56 cmt.; Lattimore, 735 So.2d at 401. The party opposing the motion must be diligent and may not rest upon allegations or denials in the pleadings but must by allegations or denials set forth specific facts showing that there are indeed genuine issues for trial. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997). In other words, "when a motion for summary judgment is filed, the nonmoving party `must rebut by producing significant probative evidence showing that there are indeed genuine issues for trial.'" Foster v. Noel, 715 So.2d 174, 180 (Miss. 1998).
DISCUSSION
I. WHETHER GRANT OF SUMMARY JUDGMENT TO WINNDIXIE WAS APPROPRIATE.
¶ 18. The Moores claim that the circuit court's characterization of a pharmacist's scope of duty (that...
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