Moore v. Covenant Care Ohio, Inc.
| Decision Date | 19 September 2014 |
| Docket Number | No. L–13–1259.,L–13–1259. |
| Citation | 18 N.E.3d 1260 |
| Parties | Alicia MOORE, etc., Appellant v. COVENANT CARE OHIO, INC., et al., Defendants. [Westhaven Services Co., LLC, d/b/a Omnicare Pharmacy, etc., Kelli Renee Jones, and Stephanie Weiss—Appellees]. |
| Court | Ohio Court of Appeals |
Jeffrey C. Zilba and Corey L. Tomlinson, Toledo, for appellant.
Martin T. Galvin, Cleveland, and David A. Valent, for appellees.
{¶ 1} Appellant, Alicia Moore, personal representative of the estate of Juanita Williams, appeals from the October 30, 2013 judgment of the Lucas County Court of Common Pleas granting summary judgment to appellee, Omnicare, Inc., and dismissing the wrongful death action filed by appellant. Because we find that Omnicare owed a duty to exercise reasonable care to Moore, we reverse and remand.
{¶ 2} Appellant brought a survivorship and wrongful death action for the benefit of the estate of Williams, deceased, and her next of kin. Appellant alleged a breach of pharmaceutical care owed to Williams when she was a resident at Fairview Skilled Nursing and Rehabilitation Center. The named defendants included Covenant Care Ohio, Inc., d/b/a Fairview Skilled Nursing and Rehabilitation Center; dispensing pharmacist, Kelli Renee Jones; consulting pharmacist, Stephanie Weis; and appellees, Westhaven Services Co., LLC d/b/a Omnicare Pharmacy of Northwest Ohio, and Omnicare, Inc. (collectively hereinafter referred to as “Omnicare”).
{¶ 3} The following undisputed facts were submitted into evidence by the parties through the affidavit of Brian Pratt, the pharmacy manager at Omnicare; the deposition of Stephanie Weis; the deposition of Kelli Jones; the deposition of Tamara Pilaczynski, a certified pharmacy technician; and the affidavit of Robert S. Litman, R.Ph., C.Ph., GCP, a licensed pharmacist, with over 30 years of experience, in the states of Florida and Ohio, a board-certified geriatric pharmacist, and an adjunct professor of geriatric medicine at several universities.
{¶ 4} Williams became a resident at Fairview on March 28, 2011. On April 9, 2011, Kamal Nader Tadros Yoakim, M.D., became her physician and discontinued her daily dosage of 3.5 mg of an anticoagulant medication, Coumadin / Warfarin (hereinafter “Warfarin ”), which had been dispensed in a combination dose of 2.5 mg and 1 mg. Dr. Yoakim increased her daily dosage to 5.0 mg for two days and then ordered a daily dosage of 4.0 mg of Warfarin to continue thereafter because of her history of deep vein thrombosis and pulmonary embolism. The doctor further ordered that her blood be drawn every Tuesday to measure her Prothrombin Time/International Normalized Ratio (hereinafter “INR”) in order to determine the therapeutic effectiveness of the medication.
{¶ 5} Omnicare, Inc. became the provider of pharmaceutical medications to Williams while she was at Fairview, through its subsidiary, Westhaven Services Co., LLC d/b/a Omnicare Pharmacy of Northwest Ohio. Jones was the dispensing pharmacist for Omnicare who filled Williams' new prescription for Warfarin. Jones testified that computer-generated marks on the order form indicated that each element of the order was entered into Omnicare's computer system (“OASIS”) by a technician and was verified by a pharmacist. However, the physician's orders sheets (hereinafter “POS”) created by Omnicare dated May 1 and June 1 continued to show pending prescriptions for Warfarin of 2.5 mg, 1 mg, and 4 mg. Both Jones and Weis testified that while Omnicare produced the POS, it was Fairview's responsibility to correct or update the report and get the physician's signature. Jones could not explain why the May and June POS still indicated pending prescriptions for Warfarin of 2.5 mg, 1 mg, and 4 mg.
{¶ 6} Omnicare's records further indicated that 30 doses of 1 mg and 2.5 mg of Warfarin had been shipped to Fairview on March 28, 2011, and two–5 mg doses of Warfarin were shipped on April 10, 2011. The prescription for the 4 mg dose of Warfarin was received by Omnicare and entered into OASIS on April 11, 2011. However, the 4 mg doses were never shipped to Fairview.
{¶ 7} When Jones reviewed Williams' POS dated May 1, 2011, she testified she would have noticed that there were three orders for Warfarin of three different dosage levels. The computer should have caught that these orders were conflicting and caused a pop-up box to appear, which would have to be cleared before the computer could accept the order. Jones could not recall having reviewed this particular POS in May 2011, but the computer recorded that she was the verifying pharmacist. She also could not predict whether a conflict would have alerted in June 2011.
{¶ 8} Jones does not routinely verify INR results before dispensing Warfarin. Jones testified that Omnicare's policy when an order for Warfarin is received is to verify a room number or a birthday, match the doctor, review the strength and directions, and determine whether there is a duplication of therapies. Another pharmacist at Omnicare does review the INR results before dispensing Warfarin based on those results because he is a Warfarin-dosing pharmacist whose services are specifically paid for by the facilities. Jones would, however, check the INR parameters under certain circumstances such as when antibiotics were dispensed or the patient was receiving bridging therapy between anticoagulants. While Omnicare policy also provides that the pharmacist should review a patient's chart for existing Warfarin orders when a new anticoagulant order is received, Jones testified that she does not review the charts, but reviews the patient's profile in OASIS.
{¶ 9} Williams received the 5.0 mg doses of Warfarin for two days. However, after April 10, 2011, there is conflicting evidence as to whether Williams received her daily 4.0 mg of Warfarin for the month of April. An anticoagulant administration and billing record for Williams completed by the nurses indicates that Williams was given 4.0 mg of Warfarin from April 11–30, 2011. However, during a random sampling of medical carts at Fairview on April 28, 2011, Pilaczynski, the pharmacy technician, determined that Williams' cart did not contain any Warfarin medication as prescribed. Pilaczynski notified Williams' nurse that same day. Pilaczynski testified it was not within her job description to rectify the irregularity. After April 2011, it is undisputed that Williams did not receive any Warfarin during the period of May through June, 2011.
{¶ 10} Pratt attested that Omnicare's policy 4.5 was in effect at the time Williams was a patient at Fairview and governed the re-ordering procedures for medication. This policy required that Fairview contact Omnicare in order to request a refill of any prescription and Fairview did not order any anticoagulation therapy refill for Williams after April 9, 2011. Jones testified that she did not know whether OASIS sent warnings if a drug was not shipped as ordered. She did not know if the pending 3.5 mg dose would have some way interfered with the delivery of the 4 mg dose. The only explanation she could give for the failure of the shipment of the 4 mg dose was Omnicare's unwritten procedure when it receives a timed, step-dosage order for one medication. Omnicare ships the first part of the order and holds the second part until the facility is ready to receive it. Therefore, after the 5 mg dose was shipped, Omnicare waited for Fairview to request shipment of the 4 mg dose. Since Fairview did not call for the 4 mg dose to be shipped, it never was. At the same time, the required weekly blood draws to monitor the INR ratios ceased after the April 12, 2011 lab.
{¶ 11} Stephanie Weis was the consulting pharmacist for Omnicare who conducted the drug regime reviews (hereinafter “DRR”) and medication regime reviews (hereinafter “MRR”) for Williams. Weis testified that she visited Fairview on April 20, 2011, and conducted an MRR for Williams.
{¶ 12} Weis testified her review of each patient's chart takes about five-to-six minutes on average. When she reviewed the charts, she would enter data and make notes with the help of a software system provided by Omnicare (hereinafter “OSCAR.”) The data she reviewed and/or entered into OSCAR could include the medication administration records (hereinafter “MAR”), PSOs, reported problems with the medication, lab results, diagnoses, and progress notes, all of which would suggest contraindications, dosage issues, or the need for an alternative medication. She might, but did not need to review the drug list for every patient. While she might have checked the MAR for specific purposes, she was not required to review the record to determine that the medication ordered by the physician was being administered.
{¶ 13} Because the April 1, 2011 POS for Williams indicated that the physician ordered Williams to receive Warfarin long term, Weis testified she would have examined the records, pursuant to Omnicare policy, to determine if an INR lab was conducted at least monthly to ensure that Williams was receiving a therapeutic dosage of Warfarin. Weis inputted into OSCAR an INR lab taken on April 9 showing an INR of 1.5. At the bottom of the report was a handwritten note indicating that Williams was to receive 5 mg of Warfarin for two days and then 4 mg of warfarin daily, with a recheck of her INR every Tuesday. This note was signed by “AM,” who has not been identified. Weis could not remember if she checked to ensure that the April 12 lab had been done, but knew that she would have been concerned only that at least monthly labs were being taken. Weis did not find any irregularity in Williams' chart.
{¶ 14} At the end of April 2011, Weis prepared a quality improvement consultant pharmacist summary report to identify irregularities for the director of nursing. Weis noted in her report only the irregularity provided to her by Pilaczynski that Williams' Warfarin was not available for administration and that her nurse had...
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