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Alabama Medical Malpractice – Appellate Victory against Publix Pharmacy

by William L. Pfeifer, Jr. on August 29, 2013

in Appeals

Our office recently won a medical malpractice appeal against Publix for pharmacy negligence. Although the appeal was based on a lawsuit against a pharmacy rather than a physician, the case falls within the scope of the Alabama Medical Liability Act (AMLA) which governs medical malpractice actions.

The lawsuit, Dr. Michelle D. Morgan vs Publix Super Markets, Inc., was over a pharmacist at a Publix in Jefferson County incorrectly filling Dr. Morgan’s prescription with the wrong pills. This resulted in Dr. Morgan suffering from significant medical problems due to an allergic reaction to the incorrect medication being given to her, and she sued Publix for her physical, mental, and emotional injuries caused by their negligence.

Although Dr. Morgan had two physicians as expert witnesses ready to testify as to the harm caused to her by the pharmacy’s error, the trial court dismissed her lawsuit because she had not retained a pharmacist to testify that putting the wrong pills in her prescription bottle constituted pharmacy negligence. The trial court was under the impression that claims under the AMLA always require the use of an expert witness to establish negligence, when that is not an accurate interpretation of the law.

After the trial court granted summary judgment to Publix, her trial attorney retained us to handle the appeal of her medical malpractice claim. In our brief to the Alabama Supreme Court, we argued that the pharmacist’s error was so obvious that there was no need for an expert witness to testify that it was error. Putting the wrong pills in a person’s prescription bottle is such an obvious and apparent error that the average layman can easily understand it using only common knowledge and experience. While this was a case of first impression in Alabama (meaning that the Alabama courts have not directly addressed this question before), we cited to rulings from other states that had ruled the same way. Additionally, we cited to several other rulings by the Alabama Supreme Court in which they had stated that there were exceptions to the general rule that required an expert witness, and showed how the reasoning of those cases applied to Dr. Morgan’s lawsuit.

The Alabama Supreme Court agreed with our argument that having a pharmacist as an expert witness was unnecessary in this case, and ruled in Dr. Morgan’s favor. The Supreme Court held that “it is unnecessary for a plaintiff prosecuting an AMLA claim based on a pharmacy’s filling his or her prescription with the incorrect medication to put forth expert testimony establishing the standard of care and a breach thereof because the want of skill or lack of care in incorrectly filling a prescription is so apparent as to be within the comprehension of the average layperson without the assistance of expert testimony.” In other words, a jury doesn’t need to hear from an expert witness in order to understand that putting the wrong pills in a patient’s prescription bottle is negligence by the pharmacist.

The trial court’s ruling was reversed, and the case has been remanded back to Jefferson County Circuit Court for a trial on the merits. To read the Alabama Supreme Court’s ruling, click here.

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