Simmons v. Apex Drug Stores, Inc.

• Decision Date: 16 August 1993
• Docket Number: Docket No. 141038
• Citation: 201 Mich.App. 250,506 N.W.2d 562
• Parties: Alton SIMMONS, Plaintiff-Appellee, v. APEX DRUG STORES, INC., d/b/a Perry Drug Stores-Metro, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 562

506 N.W.2d 562

201 Mich.App. 250

Alton SIMMONS, Plaintiff-Appellee, v. APEX DRUG STORES, INC., d/b/a Perry Drug Stores-Metro,

Defendant-Appellant.

Docket No. 141038.

Court of Appeals of Michigan.

Submitted Aug. 4, 1993, at Detroit.

Decided Aug. 16, 1993, at 10:00 a.m.

Released for Publication Oct. 19, 1993.

Kevin A. McNulty, Detroit, for plaintiff-appellee.

Sommers, Schwartz, Silver & Schwartz, P.C. by Joseph E. Grinnan, Patrick Burkett, and Kimberly S. Hauser, Southfield, for defendant-appellant.

Before BRENNAN, P.J., and CORRIGAN and ANDERSON, ^* JJ.

CORRIGAN, Judge.

In this action for malpractice by a licensed pharmacist, defendant appeals by leave granted from the trial court's denial of its motion for summary disposition pursuant to MCR 2.116(C)(7) (claim barred by the statute of limitations). We reverse.

On December 10, 1988, plaintiff presented a prescription for Tepanil Tentabs (an appetite suppressant) to a pharmacist at one of defendant's stores. The prescription was filled but, allegedly as a result of defendant's negligence, plaintiff instead received another medication, Tofranil (an antidepressant). On February 8, 1989, plaintiff suffered an adverse reaction to the Tofranil. Within the following few months, he engaged an attorney and negotiated with defendant regarding a possible claim, but he did not file suit until December 18, 1990.

Defendant moved for summary disposition, citing M.C.L. § 600.5838a; M.S.A. § 27A.5838(1), on the ground that plaintiff's claim was untimely. The court denied the motion and defendant sought leave to appeal to this Court. Defendant's application was granted and the proceedings in the lower court were stayed pending the resolution of this appeal.

The applicable standard of review under MCR 2.116(C)(7) requires us to accept plaintiff's well-pleaded allegations as true and to construe them most favorably to the plaintiff. Beauregard-Bezou v. Pierce, 194 Mich.App. 388, 390-391, 487 N.W.2d 792 (1992); Bonner v. Chicago Title Ins. Co., 194 Mich.App. 462 469, 487 N.W.2d 807 (1992). In reviewing a motion under MCR 2.116(C)(7), the court must consider all affidavits, pleadings, depositions, admissions, and documentary evidence filed or submitted by the parties. The motion should not be granted unless no factual development could provide a basis for recovery. Harrison v. Director of Dep't of Corrections, 194 Mich.App. 446, 449, 487 N.W.2d 799 (1992); MCR 2.116(C)(7); and (G)(5).

The period of limitation is two years for an action charging malpractice for claims arising after October 1, 1986. M.C.L. § 600.5805(4); M.S.A. § 27A.5805(4). The accrual date for malpractice claims is determined by M.C.L. § 600.5838a; M.S.A. § 27A.5838(1):

(1) A claim based on the medical malpractice of a person who is ... a licensed health care professional ... accrues at the time of the act or omission which is the basis for the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim. As used in this subsection:

* * * * * *

(b) "Licensed health care professional" means an individual licensed under [M.C.L. §§ 333.16101-333.18838; M.S.A. §§ 14.15(16101)-14.15(18838) ]. [Emphasis added.]

Pharmacists are considered health care providers for the purposes of our malpractice statutes. Becker v. Meyer Rexall Drug Co., 141 Mich.App. 481, 485, 367 N.W.2d 424 (1985), citing M.C.L. § 333.17711; M.S.A. § 14.15(17711) ("A person shall not engage in the practice of pharmacy unless licensed or otherwise authorized by this article."). The limitation period of M.C.L. § 600.5805(4); M.S.A. § 27A.5805(4) applies to an action where it is alleged that a licensed pharmacist mistakenly dispensed the wrong drug, thus harming the plaintiff. Id.

The cases plaintiff relies on are inapposite. Plaintiff's action accrued after October 1, 1986, and, thus, is governed by the present version of M.C.L. § 600.5838a; M.S.A. § 27A.5838(1). That statute explicitly provides that a claim for medical malpractice accrues "at the time of the act or omission which is the basis for the claim." Decisions relating to cases that arose before October 1, 1986, then, are inapplicable.

Plaintiff also attempts to avoid the bar of § 5805(4) by characterizing defendant's alleged negligence as something other than professional malpractice. This maneuver will not succeed. A plaintiff may not evade the appropriate limitation period by artful drafting. MacDonald v. Barbarotto, 161 Mich.App. 542, 550, 411 N.W.2d 747 (1987), citing State Mutual Cyclone Ins. Co. v. O & A Electric Cooperative, 381 Mich. 318, 161 N.W.2d 573 (1968). The gravamen of an action is determined by reading the claim as a whole. Aldred v. O'Hara-Bruce, 184 Mich.App. 488, 490, 458 N.W.2d 671 (1990). The type of interest allegedly harmed is the focal point in determining which limitation period controls. Id.

The key to a malpractice claim is whether it is alleged that the negligence occurred within the course of a professional relationship. Bronson v. Sisters of Mercy Health Corp., 175 Mich.App. 647, 652, 438 N.W.2d 276 (1989). A complaint may not avoid application of the two-year malpractice period of limitation merely by couching its causes of action in terms of ordinary negligence. Bell v. Mikkola, 193 Mich.App. 708, 710, 485 N.W.2d 143 (1992) (action against nonlicensed employee of licensed health care facility governed by two-year statute); MacDonald, supra at 549-550, 411 N.W.2d 747 (complaint of negligence was "transparently" based on malpractice).

Plaintiff also attempts to characterize his action as one alleging products liability, to which a three-year period of limitation would apply. M.C.L. § 600.5805(9); M.S.A. § 27A.5805(9). Plaintiff's analysis is incorrect. This is not an action alleging the sale of a defective product. As in Atkins v. Hartford Accident & Indemnity Co., 7 Mich.App. 414, 418, 151 N.W.2d 846 (1967), "[t]here was nothing inherently dangerous about the pills, if [properly] used.... [B]ut for the negligent sale of the pills, the injury would not have occurred" (holding that the exclusion for "products hazard" did not relieve a pharmacy's general liability insurer of its duty to defend against a claim it negligently sold barbituates to the plaintiff).

Summary disposition under MCR 2.116(C)(7) should not be granted if there are factual disputes regarding when discovery occurred or reasonably should have occurred. Griffith v. Brant, 177 Mich.App. 583, 587, 442 N.W.2d 652 (1989). A court may nonetheless conclude that no genuine issue of fact exists as to when the plaintiff discovered, or should have discovered, his claim. Mascarenas v. Union Carbide Corp., 196 Mich.App. 240, 245, 492 N.W.2d 512 (1992). A medical malpractice claim...