Sparks v. Kroger Co.
| Decision Date | 24 June 1991 |
| Docket Number | No. A91A0481,A91A0481 |
| Citation | 407 S.E.2d 105,200 Ga.App. 135 |
| Parties | SPARKS v. KROGER COMPANY et al. |
| Court | Georgia Court of Appeals |
Linda C. Simms, Augusta, for appellant.
Richard E. Miley, Edward L. Speese, Augusta, for appellees.
The appellant had a medical prescription filled at a pharmacy operated by The Kroger Company in one of its supermarkets, and the pharmacy dispensed to him a drug other than the one called for by the prescription. He brought this action against The Kroger Company, the pharmacist who was on duty when he presented the prescription, and the pharmacist who was on duty when the drug was dispensed to him, seeking to recover for injuries he had allegedly sustained as a result of the mistake. The defendants moved to dismiss the action based on the appellant's failure to comply with OCGA § 9-11-9.1(a), which requires that "[i]n any action for damages alleging professional malpractice, the plaintiff shall ... file with the complaint an affidavit of an expert competent to testify ... set[ting] forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim." The trial court granted the motion, and this appeal followed. Held:
1. The appellant contends that OCGA § 9-11-9.1(a) is not applicable to this case because his claim was not based on professional malpractice but on OCGA § 51-1-25, which provides as follows: "If a vender of drugs and medicines, by himself or his agent, either knowingly or negligently furnishes the wrong article or medicine and damage accrues to the purchaser, his patients, his family, or his property from the use of the drug or medicine furnished, the vender shall be liable for the injury done." As we read this statutory provision, it does nothing more than codify, with respect to vendors of drugs and medicines, the general common law duty of all persons to exercise reasonable care and diligence to avoid injuring others. Where a vendor of drugs or medicines is a licensed pharmacist and is sued on the basis of allegations that he negligently dispensed the wrong drug in filling a medical prescription, the claim against him clearly is for professional malpractice; and we find nothing in OCGA § 51-1-25 which would obviate the need for compliance with OCGA § 9-11-9.1 in such a case.
2. The appellant similarly contends that his claim should have been allowed to proceed on a breach of warranty theory, based on the principle set forth in Watkins v. Jacobs Pharmacy Co., 48 Ga.App. 38, 171 S.E. 830 (1933), "that a druggist impliedly warrants that the article he sells is the article called for, and is liable for breach of such warranty for injury resulting in giving the purchaser the wrong article." However, the plaintiff's right to recovery in the Watkins case was quite clearly considered by this court to be dependent on whether the defendant druggist had been negligent and whether his alleged negligence had proximately resulted in injury to the plaintiff. We find nothing in Watkins which would suggest that a druggist may be held liable in such a case without a showing of negligence amounting to professional malpractice.
3. The appellant alternatively contends that filling a prescription with the wrong medicine constitutes such plain and palpable negligence that a prima facie entitlement to recovery may be established in...
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...evidence") (citation and punctuation omitted).23 See id.24 See Epps, supra at 665–666 (1), 499 S.E.2d 657 ; Sparks v. Kroger, 200 Ga.App. 135, 136 (2), 407 S.E.2d 105 (1991) (trial court properly dismissed breach of warranty claim against pharmacist for failure to comply with OCGA § 9–11–9.......
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Presto v. Sandoz Pharmaceuticals Corp.
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