Whitley v. C.R. Pharmacy Serv. Inc, No. 1-085

CourtCourt of Appeals of Iowa
Writing for the CourtDOYLE, J.
Decision Date27 April 2011
Docket NumberNo. 1-085,No.10-0843

MISTY M. WHITLEY, Plaintiff-Appellant,

No. 1-085


Filed April 27, 2011

Appeal from the Iowa District Court for Linn County, L. Vern Robinson, Judge.

The plaintiff appeals following a jury verdict for the defendants in her pharmacy malpractice lawsuit. REVERSED AND REMANDED.

R.E. Breckenridge of Breckenridge & Duker, P.C., Ottumwa, and Gregory K. Zeuthen and Lawrence Baron, Portland, Oregon, for appellant.

Christopher L. Bruns and Robert M. Hogg of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellees.

Heard by Sackett, C.J., and Doyle and Danilson, JJ.

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Misty Whitley sued C.R. Pharmacy Service, Inc., 1 alleging it improperly prepared medication that caused serious injuries to both of her eyes. During the jury trial, C.R. Pharmacy used two exhibits that had not been disclosed to Whitley before the trial began. Whitley asked the trial court to exclude the evidence as a sanction for C.R. Pharmacy's failure to disclose. The court denied the request. Whitley claims this was in error and entitles her to a new trial. We agree.

I. Background Facts.

Misty Whitley was deployed to Iraq as a member of the Iowa Army National Guard in 2003. When she returned home the following year, Whitley enrolled in an accounting program at a community college. She wanted to become an officer in the armed forces and needed to earn a degree in order to do so. She also needed to improve her eyesight. According to military guidelines, Whitley's poor vision disqualified her from becoming an officer. She was informed that could change if she had LASIK surgery to improve her eyesight.

Dr. Lee Birchansky, an ophthalmologist at Fox Eye Laser & Cosmetic Institute, P.C., performed a procedure called Epi-LASIK on both Whitley's eyes on November 3, 2005. Her vision was corrected to 20/20. But by March 2006, she developed some corneal haze or scarring, an expected risk of the surgery, which caused her vision to decline.

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Whitley returned to Dr. Birchansky, who recommended she undergo a second procedure called corneal scraping to remove the haze. A chemotherapeutic and potentially toxic medication called mitomycin is routinely used during such procedures. Dr. Birchansky's office ordered the mitomycin from C.R. Pharmacy, requesting it be prepared at a 0.02% concentration. The pharmacy's note documenting the order indicated it was to be delivered to Dr. Birchansky by Thursday, March 9, 2006, the day of Whitley's procedure.

On that day, pharmacist Jodie Smith began preparing the medication at around 9:20 a.m. She ran the prescription through the pharmacy's computer, printed a label, and gathered the supplies she needed to complete the order. She took everything to a sterile compounding facility across the street from the pharmacy. The medicine was compounded at 9:25 a.m.

C.R. Pharmacy's delivery person, Ray Bollman, clocked in at the pharmacy at 10:16 a.m. He typically began his shift by writing delivery tickets for the prescriptions that were to be delivered that day and recording them in his delivery log. The delivery tickets were written on white and pink carbon paper. Bollman would staple the white copies to the prescription bag, and the pink copies would be placed on a corkboard by Bollman's desk. At the end of the day, Bollman would take all the pink copies and place them in a basket by the pharmacy's cash register. The delivered prescriptions were run through the cash register the following day.

Once Bollman's delivery preparations were completed, he would usually stop for lunch and begin his deliveries in the afternoon. On March 9, he clocked out for lunch at 12:15 p.m. and clocked back in at 12:45 p.m. His delivery log for

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the day showed a delivery to Fox Eye Clinic, its address, and a signature by "Karen M," the clinic's receptionist, with a line through it. Bollman sometimes indicated unsuccessful deliveries by putting a line through the address or signature.

Whitley's procedure began sometime after noon on March 9, 2006. Dr. Birchansky estimated it was probably finished by about 1:20 p.m. Whitley experienced a stinging sensation in both eyes when the mitomycin was applied. She saw Dr. Birchansky for a follow-up appointment a few days later. Her eyes were very irritated, and her vision was poor. She could see only shapes and general colors. She was also experiencing severe headaches. On April 7, Dr. Birchansky's office called Whitley and told her to go to the University of Iowa Hospitals and Clinics as soon as possible for an appointment with Dr. Young Kwon, an ophthalmologist specializing in glaucoma.

Dr. Kwon examined Whitley's eyes and observed severe inflammation in both. He performed emergency surgery that night. A physician who assisted Dr. Kwon with the surgery wrote Dr. Birchansky a letter on April 11, 2006, stating the degree of inflammation seen in Whitley's eyes suggested a wrong dilution of mitomycin was used during the March 9 procedure.

Upon receiving this letter, Dr. Birchansky looked in his clinic's refrigerator to see if the medication he had used on Whitley was still there. He found a bottle with a label from Fifth Avenue Compounding, a division of C.R. Pharmacy. The label, dated March 9, 2006, identified the medication as mitomycin 0.02% with a prescription number of Rx 0102193. Fox Eye Clinic and Dr. Birchansky were listed as the customers.

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On April 14, 2006, Dr. Birchansky sent the medicine to the pharmacology department at the University of Iowa for testing. That testing revealed the medication did not contain any mitomycin. Further testing was recommended, which Dr. Birchansky decided against. The sample was destroyed by the pharmacology lab.

Whitley's vision continued to deteriorate. She underwent a corneal transplant in both eyes. The transplant in the left eye was not successful, leading to the removal of that eye.

II. Proceedings.

Whitley sued Dr. Birchansky and his clinic in November 2007. The petition was later amended to add C.R. Pharmacy as a defendant. A pretrial order was entered in August 2008, setting a trial date for September 2009. The order stated,

Any party intending to offer an exhibit into evidence at the time of trial shall have such exhibit marked by proper designation prior to the commencement of the pretrial conference. At the time of the pretrial conference such exhibits or copies thereof shall be presented to opposing counsel for examination and classifying. The only exhibits exempted are those which will be used for impeachment purposes only or those exhibits which are too difficult to transport because of size or weight.

A separate order establishing deadlines stated discovery was to close on July 10, 2009, "unless extended by court order for good cause." Whitley propounded interrogatories and a request for production of documents on the defendants. Dr. Birchansky was dismissed from the suit in January 2009, and the trial scheduled for September was continued until March 2010 on both parties' request. No order establishing new discovery deadlines

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was entered, though the court had directed in its continuance order that "deadlines for discovery and pleadings be changed by order of the Court Administrator." Whitley amended her petition for a second time in September 2009 and propounded new interrogatories on C.R. Pharmacy two months later.

Interrogatory No. 7 asked, "Do you allege Plaintiff's damages were approximately [sic] caused by the acts of person[s] or entities other than by employees, personnel, agents or such entities acting on behalf of CR Pharmacy, Inc., Fifth Avenue Pharmacy, or Fifth Avenue Compounding?" C.R. Pharmacy responded, "Yes." Interrogatory No. 8 requested C.R. Pharmacy to specify the allegation and identify the witnesses and evidence supporting it. C.R. Pharmacy answered,

Defendant objects to this Request as calling for attorney work product. Without waiving this objection Defendant states it contends Dr. Birchansky's office applied a substance other than the original MMC [mitomycin] prescription to Plaintiff's eyes and later substituted another substance for the original prescription before sending the bottle for testing.

C.R. Pharmacy later filed a supplemental objection to the interrogatories, asserting they were untimely, as discovery had closed in July 2009 and had not been extended by the court. The final pretrial conference was held on February 12, 2010. The parties exchanged exhibits and filed pretrial statements. The final pretrial order stated, "Any exhibit not identified will not be admitted at trial unless this order is modified by the court, for good cause shown, by any party wishing to offer such exhibit." Among the exhibits identified by the defense was exhibit D—a copy of Bollman's delivery log from March 9, 2006, signed by "Karen M," Dr. Birchansky's

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receptionist, and a pink delivery ticket with a computer receipt and a cash register receipt stapled to it. The computer receipt, dated March 9, 2006, listed the customer as Fox Eye Clinic and Dr. Birchansky, the medication as mitomycin 0.02%, the prescription number, Rx 0102193, and the price, $85.59. The cash register receipt was dated March 10, 2006, and showed a charge of $85.59.


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