randol-mill-pharmacy-kvg-enterprises-inc-gary-g-daley-john-wayne-bailey ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00519-CV
RANDOL MILL PHARMACY; KVG APPELLANTS
ENTERPRISES, INC.; GARY G.
DALEY; JOHN WAYNE BAILEY;
JAMES ROBERT FORSYTHE;
KEVIN LYNN HEIDE; JULIE
KNOWLTON LUBBERT; AND CARA
MORRELL
V.
STACEY MILLER AND RANDY APPELLEES
MILLER
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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
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DISSENTING OPINION
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I respectfully dissent from the majority‘s opinion because I believe that the
claims urged by Stacey and Randy Miller are health care liability claims that
require an expert‘s report under chapter 74. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351 (West 2011). I further believe that the majority adopts an overly
strict interpretation of the Texas Medical Liability Act (TMLA) that both
unnecessarily heightens the already rigorous statutory requirements pertaining to
pharmacists and runs contrary to the trend of case law interpreting the TMLA.
The Texas Legislature, hoping to curtail the number of frivolous lawsuits
and preemptively remedy an impending rise in health care costs, intensified the
procedural requirements necessary to sustain a cause of action against a health
care provider when it passed the TMLA. See Scoresby v. Santillan, 346 S.W.3d
546, 553–54 (Tex. 2011) (―Fundamentally, the goal of the [TMLA] has been to
make health care in Texas more available and less expensive by reducing the
cost of health care liability claims.‖). The statutory and procedural rigor of the
TMLA ought to serve largely to deter frivolous lawsuits regarding health care,
rather than compel or even encourage litigants to disguise health care liability
claims and divert them into other areas of the law. See id. Although the TMLA
heightened the procedural threshold for health care liability claims, it did not alter
the substantive or underlying nature of these claims. Omaha Healthcare Ctr.,
L.L.C. v. Johnson, 344 S.W.3d 392, 394–95 (Tex. 2011) (―In order to determine
whether a claim is [a health care liability claim], we consider the underlying
nature of the claim. Artful pleading cannot alter that nature.‖ (citation omitted)).
The TMLA’s Text
The TMLA provides that a health care liability claim is
a cause of action against a health care provider or physician for
treatment, lack of treatment, or other claimed departure from
accepted standards of medical care, or health care, or safety or
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professional or administrative services directly related to health care,
which proximately results in injury to or death of a claimant.
Tex. Civ. Prac. & Rem. Code Ann. § 74.001(13) (West Supp. 2012). The TMLA
supplies a general definition for a ―[h]ealth care provider‖ that includes a
pharmacist and any employee, independent contractor, or agent of a pharmacist
acting ―in the course and scope of the employment or contractual relationship.‖
Id. § 74.001(12)(A)(iv), (B)(ii). Additionally, the TMLA generally defines ―[h]ealth
care‖ as ―any act or treatment performed or furnished, or that should have been
performed or furnished, by any health care provider for, to, or on behalf of a
patient during the patient‘s medical care, treatment, or confinement.‖
Id. § 74.001(10). Despite these broad definitions, however, the TMLA
significantly limits the scope of possible health care liability claims against
pharmacists in a separate provision providing,
―Pharmacist‖ means one licensed under Chapter 551, Occupations
Code, who, for the purposes of this chapter, performs those activities
limited to the dispensing of prescription medicines which result in
health care liability claims and does not include any other cause of
action that may exist at common law against them, including but not
limited to causes of action for the sale of mishandled or defective
products.
Id. § 74.001(22). Therefore, according to this stricter standard, a health care
liability claim may be sustained only against a pharmacist who dispenses
prescription medications that result in a health care liability claim.
The issue here hinges on whether appellants qualify as ―health care
providers‖ under the TMLA, which requires that they satisfy the TMLA‘s criterion
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of ―dispensing . . . prescription medications.‖ The Texas Pharmacy Act (TPA)
provides a technical definition for the term ―dispense‖ as it pertains to
pharmacists:
―Dispense‖ means to prepare, package, compound, or label, in the
course of professional practice, a prescription drug or device for
delivery to an ultimate user or the user‘s agent under a practitioner‘s
lawful order.
Tex. Occ. Code Ann. § 551.003(16) (West 2012).
Both the majority and appellees contend that appellants do not satisfy the
―prescription drug‖ aspect of the TPA‘s definition of ―dispense‖ because
appellants did not provide the lipoic acid to Dr. Tan pursuant to an individual
prescription for Stacey Miller. See id. The standards for ―pharmacist‖ under the
TMLA and ―dispense‖ under the TPA, however, require merely a ―prescription
drug,‖ not a drug specifically prescribed for a particular individual. Id.; Tex. Civ.
Prac. & Rem. Code Ann. § 74.001(22). Appellees rely heavily on the report of
the Texas Department of State Health Services to support their claim that there
was no prescription for a specific patient. This very report concedes, however,
that appellants were compounding ―prescription drugs, such as: Lipoic Acid
Injectable 200 mg/ml.‖ [Emphasis added.] Furthermore, in addition to labeling
the lipoic acid injections as a ―prescription drug,‖ the report also includes a report
from the pharmacy‘s records of the prescriptions provided to Dr. Tan, which lists
the date and time that appellants delivered the lipoic acid injections, assigns
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each order a separate ―Rx #,‖ and notes the specifications and instructions for
the lipoic acid to be dispensed.
The majority states that ―Dr. Tan placed a ‗bulk‘ telephone order with
appellants on November 29, 2011 and on December 2, 2011 for an aggregate of
twenty-three 30-millimeter vials of injectable lipoic acid for ‗office use.‘‖ An orally
transmitted prescription order may be valid, though, provided that the pharmacist
notes ―the dispensing instructions of the practitioner‖ and ―retain[s] the
prescription for the period specified by law.‖ Tex. Occ. Code Ann. § 562.004
(West 2012). The pharmacy‘s report clearly indicates that the pharmacist to
whom Dr. Tan transmitted his order noted Dr. Tan‘s specifications for 200 mg/ml
lipoic acid injections. Lastly, there is no requirement that compounding be
performed strictly for an individual patient to be considered compounding rather
than manufacturing. See id. §§ 562.152 (―A pharmacy may dispense and deliver
a reasonable quantity of a compounded drug to a practitioner for office use by
the practitioner in accordance with this chapter.‖), 551.003(23) (―‗Manufacturing‘
means the production, preparation, propagation, conversion, or processing of a
drug or device. . . . The term does not include compounding.‖ (emphasis added)),
551.003(9)(B) (―‗Compounding‘ means the preparation, mixing, assembling,
packaging, or labeling of a drug or device . . . for administration to a patient by a
practitioner as the result of a practitioner‘s initiative.‖) (West 2012). Therefore,
even though the record does not contain an individual prescription for Stacey
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Miller, it does indicate that appellants compounded the lipoic acid injections
pursuant to a prescription from Dr. Tan that is valid for TMLA purposes.
The second issue the majority raises regarding the definition of ―dispense‖
concerns the phrase ―delivery to an ultimate user.‖ Id. § 551.003(16). The TPA
defines ―deliver‖ or ―delivery‖ as ―the actual, constructive, or attempted transfer of
a prescription drug or device or controlled substance from one person to another,
with or without consideration.‖ Id. § 551.003(13). The TPA also defines an
―ultimate user‖ as a ―person who obtains or possesses a prescription drug or
device for the person‘s own use or for the use of a member of the person‘s
household.‖ Id. § 551.003(43). The majority rests its ruling on these two
definitions; however, other statutes provide further relevant guidance regarding
the meaning of ―dispense.‖ For instance, the health and safety code also defines
―dispense‖ in the context of regulating pharmaceutical practice; it provides,
―Dispense‖ means the delivery of a controlled substance in the
course of professional practice or research, by a practitioner or
person acting under the lawful order of a practitioner, to an ultimate
user or research subject. The term includes the prescribing,
administering, packaging, labeling, or compounding necessary to
prepare the substance for delivery.
Tex. Health & Safety Code Ann. § 481.002(12) (West 2010) (emphasis added).
Therefore, according to this definition, the chain of events comprising
dispensation would have included Dr. Tan‘s administering the lipoic acid to
Stacey Miller as well as appellants‘ compounding of it. See id.; Tex. Occ. Code
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Ann. § 551.003(1) (defining ―administer‖ as the direct application of a prescription
drug to the body of a patient, including by injection).
The majority construes the definition of ―ultimate user‖ too narrowly,
asserting that appellants did not fulfill the standard because they delivered the
compounded lipoic acid to Dr. Tan, who did not use the drug on himself. This
construction unnecessarily increases the already heightened standard imposed
by the legislature; nowhere does the TMLA dictate the strict privity between a
pharmacist and an ultimate user that the majority suggests. The majority‘s
interpretation would deny the many pharmacists who compound drugs for
individuals that must be administered by nurses or physicians, intravenously or
otherwise, of the protections afforded to them by the TMLA simply because the
pharmacist did not personally deliver the prescription to the recipient. Despite
the TPA‘s more limited definition under the health and safety code, the
administration of a drug to an ultimate user by a physician constitutes sufficient
―delivery‖ that satisfies the definition of ―dispense.‖
Therefore, a plain text interpretation of the TMLA and related statutes
reveals that appellees did in fact state a TMLA claim against appellants. The
record supports that the lipoic acid injections were in fact a ―prescription
medicine,‖ despite not being prescribed for a particular individual. Furthermore,
administration by a physician is a valid method of ―delivery,‖ so construing Stacey
Miller as the ―ultimate user‖ is not impermissible under related statutory text,
even though she did not administer the injections to herself. See Tex. Health &
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Safety Code Ann. § 481.002(12). Because the ―prescription drug,‖ injectable
lipoic acid, was delivered to the ―ultimate user,‖ Stacey Miller, I believe this
situation meets the TPA‘s definition of ―dispense.‖ See Tex. Occ. Code Ann. §
551.003(16). Therefore, since appellees essentially contend that appellants
breached an accepted standard of health care when they compounded the lipoic
acid and ―dispens[ed] . . . [the] prescription medicine[ ],‖ appellees state a claim
under the TMLA that is subject to chapter 74‘s expert report requirements. See
id.; see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351.
The majority conflates two separate elements of the statutory definition of
―dispense.‖ Essentially, the majority states that for a pharmacist to qualify as a
health care provider under the TMLA, the pharmacist must dispense a
prescription drug pursuant to an individual prescription for a specific patient;
however, this theory unduly heightens the already strict standard pharmacists
must satisfy to qualify as health care providers under the TMLA. The definition of
―dispense‖ contains multiple distinct requirements: a pharmacist must (1)
prepare, compound, or label, (2) in the course of professional practice, (3) a
prescription drug (4) for delivery to an ultimate user or the ultimate user‘s agent
(5) under a practitioner‘s lawful order. Tex. Occ. Code Ann. § 551.003(16)
(defining ―dispense‖). The majority‘s interpretation construes the fourth and fifth
requirements so as to create a more onerous requirement that a pharmacist may
only prepare, compound, or package a prescription drug for an ultimate user
pursuant to a practitioner‘s lawful prescription specifically for the ultimate user to
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satisfy the definition of ―dispense.‖ Id. The statute clearly states, however, that a
pharmacist need only compound a prescription drug pursuant to a practitioner‘s
lawful order to satisfy the definition of ―dispense.‖ See id. The occupations code
includes a distinct definition of ―prescription drug order,‖ defining a prescription
drug order as ―an order from a practitioner . . . to a pharmacist for a drug or
device to be dispensed.‖ Id. § 551.003(37)(A) (emphasis added). This definition,
too, does not require that a prescription drug order be an order from a
practitioner to a pharmacist for a drug to be dispensed pursuant to a prescription
for a specific patient. As stated above, Dr. Tan‘s telephonic order to appellants
for lipoic acid qualifies as a ―practitioner‘s lawful order‖ as it pertains to the
definition of ―dispense,‖ even though Dr. Tan did not order the lipoic acid
exclusively as a prescription for Stacey Miller.
Thus, the final remaining issue is whether the criterion that the drug is
delivered to an ―ultimate user‘s agent‖ is satisfied. The majority concedes that a
doctor or nurse administering a drug could serve as an ―ultimate user‘s agent‖;
however, they qualify this concession by stating that a doctor or nurse is an
―ultimate user‘s agent‖ under the definition of ―dispense‖ only if the doctor or
nurse administers a drug prescribed specifically for the ―ultimate user.‖ This
creates another ancillary requirement not included within the statute. The
definition of ―ultimate user‖ requires only that a person ―obtain[] or possess[] a
prescription drug . . . for the person‘s own use‖; this definition does not require
that the ultimate user do so as the result of a specific and unique prescription,
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and the definition of ―dispense‖ requires only that the drug be delivered to the
ultimate user under a practitioner‘s lawful order. Id. § 551.003(16), (43). The
existence of a specific prescription does not alter the identity of the ultimate user
or the nature of the agents who may administer the drug. Stacey Miller is the
―ultimate user‖ of the prescription drug—lipoic acid—because she ―obtain[ed]‖
and ―possess[ed]‖ the prescription drug when her agent—Dr. Tan—delivered the
drug to her by administering the injection. Id. § 551.003(43).
In sum, because the lipoic acid was compounded under Dr. Tan‘s lawful
order and then delivered either actually to Stacey Miller‘s agent, Dr. Tan, or
constructively to Stacey Miller herself by Dr. Tan, appellants did in fact
―dispense‖ the lipoic acid, which qualifies them as health care providers under
the TMLA. Id. §§ 551.003(13) (defining ―delivery‖ as the ―actual‖ or ―constructive‖
transfer of a prescription drug), 551.003(16); Tex. Civ. Prac. & Rem. Code Ann. §
74.001(22).
Interpretation of the TMLA
The majority‘s interpretation also runs contrary to the case law interpreting
the TMLA. In general, courts have construed the TMLA broadly, so as to include
claims within the TMLA. See, e.g., Diversicare Gen. Partner, Inc. v. Rubio, 185
S.W.3d 842, 853–54 (Tex. 2005) (holding that patient‘s claim against health care
provider for assault by another patient was health care liability claim); Covenant
Health Sys. v. Barnett, 342 S.W.3d 226, 233–34 (Tex. App.—Amarillo 2011, no
pet.) (holding that allegations of improper monitoring of patient at free heart
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screening test and placing of aerobic step for screening too close to wall
constituted health care liability claim); Scientific Image Ctr. Mgmt., Inc. v. Brewer,
282 S.W.3d 233, 239–40 (Tex. App.—Dallas 2009, pet. denied) (holding that
plaintiff‘s claims couched as claims under the Texas Deceptive Trade Practices-
Consumer Protection Act for failed elective plastic surgery were in essence
health care liability claims governed by chapter 74); Clark v. TIRR Rehab. Ctr.,
227 S.W.3d 256, 262–64 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding
that failure to supervise elderly woman attempting exercise during physical
therapy was health care liability claim). This broad construction of the TMLA
largely serves to further the legislature‘s intent that decisions requiring medical,
health care, or otherwise professional judgment be weighed against accepted
standards of professional care, thereby insulating medical and health care
professionals from claims of ordinary negligence arising from the exercise of
professional judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(13)
(defining health care liability claim as ―a cause of action . . . [for a] claimed
departure from accepted standards of medical care, or health care, or safety or
professional or administrative services directly related to health care‖); see also
Clark, 227 S.W.3d at 262–64; Oak Park, Inc. v. Harrison, 206 S.W.3d 133, 139
(Tex. App.—Eastland 2006, no pet.) (holding that allowing dangerous patient to
remain in same room as another patient was governed by accepted standards of
medical care, health care, and safety rather than by ordinary negligence).
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The core rationale behind holding professionals to a professional standard
of care and requiring a threshold expert report is that many of the elements of a
medical negligence claim and the facts that underlie them transcend common
knowledge. In most claims of medical negligence, an expert would be required
eventually to prove causation or damages, so the threshold expert report
requirement in chapter 74 seeks to eliminate meritless or medically
unsustainable claims before they progress to further stages of litigation. See
Saleh v. Hollinger, 335 S.W.3d 368, 374 (Tex. App.—Dallas 2011, pet. denied)
(―In determining whether a claim is inseparable from the rendition of medical
care, we consider factors such as whether a specialized standard in the health
care community applies to the alleged circumstances and whether the alleged
negligent act involved medical judgment related to the patient‘s care or
treatment.‖) (citing Diversicare, 185 S.W.3d at 847–52); see also Inst. For
Women’s Health, P.L.L.C. v. Imad, No. 04-05-00555-CV, 2006 WL 334013, at *3
(Tex. App.—San Antonio Feb. 15, 2006, no pet.) (mem. op.) (―Expert testimony is
necessary to establish the applicable standard of care ‗when the alleged
negligence is of such a nature as not to be within the experience of the layman.‘‖
(quoting FFE Transp. Serv., Inc v. Fulgham, 154 S.W.3d 84, 90 (Tex. 2004)).
The majority‘s construction of the TMLA leads to a result directly at odds
with the legislature‘s intent. Not only does the majority‘s interpretation deny
appellants the statutory protection of measuring their professional judgment
against an accepted standard of professional care, it also exposes appellants to
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greater liability by allowing appellees to couch an essentially health care based
claim in terms of a product liability claim and circumvent the procedural
standards of chapter 74. See Omaha Healthcare Ctr., L.L.C., 344 S.W.3d at
394–95 (stating litigants cannot avoid the requirements of the TMLA by artfully
pleading a health care liability claim and classifying the claim as a different cause
of action).
Here, appellees allege their claims against appellants in terms of a
products liability suit in which they assert that appellants compounded defective
lipoic acid. Compounding is an integral aspect of the practice of pharmacy,
however, such that it is part of the standard curriculum at most pharmacy
schools. See Med. Ctr. Pharm. v. Mukasey, 536 F.3d 383, 387–88 (5th Cir.
2008) (citing Thompson v. W. States Med. Ctr., 535 U.S. 357, 361, 122 S. Ct.
1497, 1500 (2002)). Although a significant portion of the professional practice of
pharmacy has lapsed into the process of packaging and distributing
premeasured dosage units provided by large-scale manufacturers for retail sale
and distribution, the localized service of compounding prescription drugs
nevertheless continues to require a pharmacist‘s professional judgment and skill.
Compare Tex. State Bd. of Pharm. v. Gibson’s Disc. Ctr., Inc., 541 S.W.2d 884,
888 (Tex. App.—Austin 1976, writ ref‘d n.r.e.) (―[I]t is a fair conclusion that the
dispensing of prescription drugs has become more of a retail endeavor than a
service endeavor.‖), and Va. State Bd. of Pharm. v. Va. Citizens Consumer
Council, 425 U.S. 748, 773–74, 96 S. Ct. 1817, 1831 (1976) (Burger, J.,
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concurring) (―The Court notes that roughly 95% [o]f all prescriptions are filled with
dosage units already prepared by the manufacturer and sold to the pharmacy in
that form. . . . In dispensing these prepackaged items, the pharmacist performs
largely a packaging rather than a compounding function of former times.‖), with,
e.g., 22 Tex. Admin. Code § 291.131(c)(2) (2012) (Tex. State Bd. of Pharm.,
Pharmacies Compounding Non-Sterile Preparations) (dictating that a pharmacist
must review and approve the materials, equipment, and final product during the
compounding process as well as ensure that all pharmacists and technicians
engaged in compounding possess the requisite education and experience).
Compounding prescription drugs requires an equal, if not greater, degree
of professional judgment on the part of the pharmacist than does preparing
preformed dosage units for distribution. Even so, the majority of claims brought
under chapter 74 that name a pharmacist as a defendant have concerned the
misfilling of a prescription or distribution of an incorrect drug, and courts have
consistently held that these claims are in fact health care liability claims requiring
an expert report under chapter 74. See, e.g., Walgreen Co. v. Hieger, 243
S.W.3d 183, 186–87 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (holding
plaintiff‘s expert report insufficient in misfilled prescription case); HEB Grocery
Co., L.L.P. v. Farenik, 243 S.W.3d 171, 176–77 (Tex. App.—San Antonio 2007,
no pet.) (affirming sufficiency of plaintiff‘s expert report in misfilled prescription
case); Randalls Food and Drugs, L.P. v. Kocurek, No. 14-05-01184-CV, 2006
WL 2771872, at *2–3 (Tex. App.—Houston [14th Dist.] Sept. 28, 2006, no pet.)
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(mem. op.) (holding expert report insufficient as to causation in misfilled
prescription case); Ruiz v. Walgreen Co., 79 S.W.3d 235, 238 (Tex. App.—
Houston [14th Dist.] 2002, no pet.) (holding that TMLA applies in misfilled
prescription case); see also CVS Pharm., Inc. v. Ballard, No. 01-12-00253-CV,
2012 WL 4742652, at *4–6 (Tex. App.—Houston [1st Dist.] Oct. 4, 2012, no pet.)
(mem. op.) (holding expert report sufficient in claim against pharmacy for failing
to recognize and correct dangerous drug overdose and for failing to fill
prescription in accordance with Texas Pharmacy Practice Standards); Gingrich v.
Scarborough, No. 09-09-00211-CV, 2010 WL 1711067, at *5–6 (Tex. App.—
Beaumont Apr. 29, 2010, no pet.) (mem. op) (rejecting sufficiency of plaintiff‘s
expert report for claim that pharmacist failed to recognize excessive prescription
before filling and distributing prescription). Furthermore, in many of the cases
listed above, the courts held that an expert report was required because the
alleged negligence exceeded the ordinary knowledge of a layman and thus had
to be measured against a standard of professional care. If claims pertaining to
the misfilling of prescription drugs exceed the ordinary knowledge of a layman so
as to require a chapter 74 expert report, it logically follows that allegations of
negligence that occurred during the process of compounding a prescription drug
ought to require a chapter 74 expert report as well.
Moreover, even claims against pharmacists that resemble products liability
claims have been held to fall within the parameters of chapter 74. See San
Antonio Extended Med. Care, Inc. v. Vasquez, 327 S.W.3d 193, 199–200 (Tex.
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App.—San Antonio 2010, no pet.) (op. on reh‘g) (holding that chapter 74 expert
report was required in case in which plaintiff alleged ordinary negligence against
―prescription drug‖ firm that provided improperly filled oxygen tanks for plaintiff‘s
ventilator). The Texas Supreme Court recently reversed part of a ruling that
attempted to divide a claim against a pharmaceutical device provider into
separate products liability and TMLA causes of action. Turtle Healthcare Grp.,
L.L.C. v. Linan, 337 S.W.3d 865, 869 (Tex. 2011). The appellate court originally
attempted to separate the claims that alleged a departure from accepted
standards of medical care from those that merely alleged ordinarily negligence.
Turtle Healthcare Grp., L.L.C. v. Linan, 338 S.W.3d 1, 9 (Tex. App.—Corpus
Christi 2009) (Vela, J., dissenting) (―The Linans‘ claim is one for the breach of the
standard of care for a health care provider because providing Linan with a
functioning ventilator is inseparable from insuring that the batteries, necessary for
proper functioning of the ventilator, were properly charged.‖). The Supreme
Court followed the reasoning of Justice Vela‘s dissent in its opinion, holding that
even the pharmacy‘s duty to ensure that batteries were properly charged fell
within the boundaries of the TMLA in that any claims of negligence regarding the
improperly charged batteries must be judged against an accepted standard of
professional care rather than ordinary care. Turtle Healthcare Grp., L.L.C., 337
S.W.3d at 867–69.
Here, appellants engaged in a process much more complex than ensuring
that oxygen tanks were fully filled or batteries fully charged at the time of delivery.
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Also, the process of compounding requires more professional judgment and
discretion than the process of distributing preformed dosage units. To hold
appellants‘ alleged negligence in compounding to a standard of ordinary care
when other courts have measured even the duty to ensure that batteries are
properly charged or preformed dosage prescriptions properly filled against an
accepted standard of professional care would be counterintuitive to our primary
goal of giving effect to the legislature‘s intent as expressed within the TMLA. See
Tex. Gov‘t Code Ann. § 312.005 (West 2013) (―In interpreting a statute, a court
shall diligently attempt to ascertain legislative intent.‖). The Texas Supreme
Court has recognized the breadth of the TMLA‘s scope, and the interpretations of
other courts listed above indicate how the courts have followed this trend
specifically with respect to the TMLA as it pertains to pharmacists. Tex. W. Oaks
Hosp., LP v. Williams, 371 S.W.3d 171, 176 (Tex. 2012) (―We recognize that the
Legislature intended the Texas Medical Liability Insurance Improvement Act
(TMLIIA), the TMLA‘s predecessor, to be broad, and it broadened that scope
further in 2003 with its repeal and amendments resulting in the TMLA.‖). We
should not deviate from this trend by imposing even stricter requirements on
classifying claims against pharmacists as health care liability claims than the
legislature has explicitly included within the TMLA.
According to the majority‘s interpretation, the difference between holding a
pharmacist liable under the TMLA or ordinary tort law could be whether a nurse
or physician administered the drug as opposed to the pharmacist directly
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delivering the prescription to the patient. Such an interpretation is not only
unduly strict and constraining, but it is also untenable insofar as it leads to an
absurd result that diverges from the legislature‘s intent. See Jennings v.
WallBuilder Presentations, Inc. ex rel. Barton, 378 S.W.3d 519, 523 (Tex. App.—
Fort Worth 2012, no pet.) (citing Tex. Lottery Comm’n v. First State Bank of
DeQueen, 325 S.W.3d 628, 635 (Tex. 2010)). By compounding the lipoic acid,
appellants engaged in one of the most time-honored aspects of the professional
practice of pharmacy, one that antedates mass production and distribution of
uniform pharmaceuticals and requires professional judgment, education, and
aptitude.
Conclusion
One of the primary purposes of the TMLA is to protect professionals from
meritless negligence claims and to measure any alleged negligence against a
professional standard. Respectfully, I believe the majority‘s interpretation would
deny appellants the statutory protection of measuring their judgment against an
acceptable standard of professional care. For these reasons, I dissent from the
majority opinion and would reverse the trial court‘s denial of appellants‘ motion to
dismiss for failure to file a chapter 74 expert report and remand the case to the
trial court with instructions to dismiss appellee‘s claims against appellants and to
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consider whether to award reasonable attorney‘s fees. See Tex. W. Oaks Hosp.,
371 S.W.3d at 193.
TERRIE LIVINGSTON
CHIEF JUSTICE
DELIVERED: September 19, 2013
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