Opinion
No. HHB CV 07 5004423 S
October 16, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#103)
The court heard oral argument at the short calendar on September 24, 2007 concerning the defendants The Price Chopper, Inc.'s and Golub Corporation's motion to strike the third, fourth, seventh, and eighth counts of the plaintiffs' complaint, which allege pharmaceutical malpractice. The court's adjudication of the motion concerns the applicability of the learned intermediary doctrine to pharmacists. After review of the parties' submissions and consideration of their arguments, the court issues this memorandum of decision. For the reasons stated below, the motion is denied.
I BACKGROUND
In the third, fourth, seventh and eighth counts of the complaint, the plaintiffs, Mary Ellen Levesque, and Alan Levesque, allege that Mary Ellen Levesque sustained personal injuries as the result of a pharmacist's negligent dispensing to her a sulfa-containing medication, although the pharmacy previously had been advised that she had an allergy to drugs containing sulfa. In the third and fourth counts, she seeks to hold defendants The Price Chopper, Inc. and Golub Corporation liable based on negligence theories. In the seventh and eighth counts, her husband, Alan Levesque, seeks to hold these defendants liable for the same alleged conduct, based on claimed loss of consortium.
In each of the challenged counts, it is alleged that The Price Chopper, Inc. and Golub Corporation owned, operated, managed and/or controlled the Price Chopper pharmacy located at 121 Farmington Avenue in Bristol, Connecticut. (For ease of reference, the court refers below to these defendants collectively as the "movants.") The plaintiffs allege that the movants had a staff of pharmacists, pharmacy technicians and other health care providers, who were their agents, apparent agents, servants and/or employees, and who filled prescription orders for patients and customers, including Mary Ellen Levesque.
In paragraph 10 of each of the challenged counts, the plaintiffs allege that, "[a]t all times mentioned herein, . . . Mary Ellen Levesque had an allergy to drugs containing sulfa, and she had communicated her allergy to [her physician, defendant Jayne Cluett, M.D.] and the Price Chopper pharmacy prior to March 17, 2005." See complaint, third, fourth, seventh, and eighth counts, ¶ 10.
The Supreme Court has looked to T. Stedman, Medical Dictionary (28th Ed. 2006) (Stedman's) in order to explain medical terms. See Viera v. Cohen, 283 Conn. 412, 418, 927 A.2d 843 (2007). Stedman's, p. 1867, defines "sulfa" as "[d]enoting the sulfa drugs, or sulfonamides." It defines "sulfonamides" as "[t]he sulfa drugs, a group of bacteriostaic drugs comprising the sulfanilamide group . . ." See Stedman's, p. 1868.
The plaintiffs further allege that, on or about March 17, 2005, Mary Ellen Levesque called Cluett and complained of signs and symptoms of a urinary tract infection. They allege that Cluett prescribed Bactrim and called the prescription in to the Price Chopper pharmacy, which filled it and dispensed it to Mary Ellen Levesque.
The plaintiffs also allege that Mary Ellen Levesque ingested the prescribed medication and then experienced severe muscle discomfort, after which she called the Price Chopper pharmacy and Cluett, and was advised that the medication contained sulfa. She claims that, as a result, she suffered injuries and damages, some or all of which are permanent: peripheral neuropathy; sensory polyneuritis; chronic severe pain; chronic numbness, tingling and burning; diminished sensation in fingertips and the soles of her feet; hypersensitivity to touch and temperature; loss of sleep; and continual fear and discomfort.
The plaintiffs allege that her injuries and damages were caused by the movants' negligence and carelessness, in that they dispensed a medication to which she had a documented allergy; failed to check her record for a documented allergy prior to filling the prescription; and failed to inquire of her whether she had any allergies prior to dispensing medication. See complaint, third, fourth, seventh and eighth counts, ¶ 16.
In their motion to strike, the movants, relying on the learned intermediary doctrine, contend that they did not owe a duty to Mary Ellen Levesque. They also assert that, since no duty was owed to her, they cannot be liable for Alan Levesque's loss of consortium claims, as they are derivative of his wife's alleged pharmaceutical malpractice claims.
In their objection to the motion to strike (#111), the plaintiffs contend that a well-defined exception to the learned intermediary doctrine is applicable here, that where the pharmacy or pharmacist has specific knowledge of potential harms to specific persons in particular cases, the pharmacy has a duty to warn and may be liable for the failure to do so.
II STANDARD OF REVIEW
The standard of review on a motion to strike is well established. "[A] motion to strike challenges the legal sufficiency of a pleading . . . [W]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006).
"For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).
III DISCUSSION
The Supreme Court recently reiterated the legal underpinnings of the learned intermediary doctrine. "A product may be defective due to a flaw in the manufacturing process, a design defect or because of inadequate warnings or instructions . . . According to the Restatement (Second) of Torts, certain products, by their very nature, cannot be made safe. See 2 Restatement (Second), [Torts] § 402A, comment (k) [1965]. Prescription drugs generally fall within the classification of unavoidably unsafe products . . . The learned intermediary doctrine provides that adequate warnings to prescribing physicians obviate the need for manufacturers of prescription products to warn ultimate consumers directly. The doctrine is based on the principle that prescribing physicians act as learned intermediaries between a manufacturer and consumer and, therefore, stand in the best position to evaluate a patient's needs and assess [the] risks and benefits of a particular course of treatment." (Citations omitted; internal quotation marks omitted.) Hurley v. Heart Physicians, P.C., 278 Conn. 305, 315-16, 898 A.2d 777 (2006).
This court finds persuasive the reasoning set forth by other Connecticut trial courts concerning the applicability of the learned intermediary doctrine to pharmacists and pharmacies. In Deed v. Walgreen Co., 50 Conn.Sup. 339, 341, 927 A.2d 1001 (2007) [ 43 Conn. L. Rptr. 441], the court (Shortall, J.) cited an earlier decision in the same case, Deed v. Walgreen Co., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 03 0823651 (November 15, 2004, Lavine, J.) ( 38 Conn. L. Rptr. 311), which is quoted by the movants. See memorandum in support of motion to strike, pp. 6-8. "In deciding a motion to strike . . . allegations of negligence on [the pharmacy's] part, the court . . . held that the `learned intermediary doctrine' applied in determining the liability of pharmacies for dispensing drugs prescribed by physicians." Deed v. Walgreen Co., supra, 50 Conn.Sup. 341. "Judge Lavine concluded that `there is no logical reason why the learned intermediary doctrine should not be extended to pharmacies and pharmacists,' subject to certain exceptions delineated in case law from other states which had previously considered the issue." Id.
"(C)ourts holding that pharmacists owe their customers a duty beyond accurately filling prescriptions do so based on the presence of additional factors, such as known contraindications, that would alert a reasonably prudent pharmacist to a potential problem . . . For example, in Hand v. Krakowski, 89 A.D.2d 650, 453 N.Y.S.2d 121 (1982), a doctor prescribed psychotropic drugs to a patient the pharmacist knew to be an alcoholic. The pharmacist also knew the drugs were contraindicated with the use of alcohol, yet continued to dispense them to the patient for six years without warning her of the danger. The patient died of pancreatitis associated with a severe degree of cirrhosis. The New York Appellate Court reversed the summary judgment granted in favor of the pharmacy because it knew or should have known that the prescribed drugs were contraindicated with alcohol." (Citation omitted; internal quotation marks omitted.) Id., 50 Conn.Sup. 342.
"In the absence of such special circumstances courts all over the country have held that a pharmacist owes no duty to warn his customer of the potential dangers of a prescribed medication . . . Even where a customer is being overmedicated or overdoses, a pharmacy has no duty to notify the customer that she is being overmedicated because the duty to warn falls on the prescribing physician . . . The cases in which courts have found a duty to warn on the part of a pharmacy are based on some knowledge on the pharmacist's part superior to that of the customer; e.g., that the prescribed drug is contraindicated for the customer or conflicts with other drugs the customer is taking." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 343-44.
In his decision, Judge Lavine "conclude[d] that to free pharmacists from any duty under all circumstances would be unwise. In narrow circumstances, recognized by courts in other jurisdictions, and depending upon the facts, pharmacies and pharmacists may assume a duty to a customer in connection with dispensing medications prescribed by a physician or physicians. Specifically, such a duty may be assumed when (1) a pharmacy or pharmacist has specific knowledge of potential harm to specific persons in particular cases; or (2) the pharmacy or pharmacist makes a representation that they will engage in a process of evaluation of the possible effects caused by the administration of a drug or combination of drugs; or (3) there is something patently and unambiguously wrong with the prescription itself, e.g., it is or should be plain that the medication prescribed provides a fatal dose to the patient. In these instances, the pharmacist's duty to the patient is an outgrowth of the pharmacist's knowledge or the pharmacist's voluntary assumption of a duty through his or her own actions or representations. Recognition of these exceptions will neither impose unreasonable expectations on pharmacies nor interfere with the physician-patient relationship nor significantly increase litigation. As emphasized by the Supreme Judicial Court of Massachusetts in Cottam v. CVS Pharmacy, 436 Mass. [316] at 326 [, 764 N.E.2d 814 (2002)], `the scope of the duty voluntarily undertaken by a pharmacy is a fact-specific inquiry based on the totality of the pharmacy's communications with the patient and the patient's reasonable understanding, based on these communications, of what the pharmacy has undertaken to provide.'" Deed v. Walgreen Co., supra, 38 Conn. L. Rptr. 311.
The court is unpersuaded that these exceptions are unworkable, or put the pharmacist in the position of diagnosing a patient's condition, or subject pharmacies to an onerous burden. In Happel v. Wal-Mart Stores, Inc., 199 Ill.2d 179, 766 N.E.2d 1118 (2002), the Illinois Supreme Court held "that a narrow duty to warn exists where . . . a pharmacy has patient-specific information about drug allergies, and knows that the drug being prescribed is contraindicated for the individual patient. In such instances a pharmacy has a duty to warn either the prescribing physician or the patient of the potential danger." Id., 197.
In reaching that conclusion, the court stated, "[t]he burden on defendant of imposing this duty is minimal. All that is required is that the pharmacist telephone the physician and inform him or her of the contraindication. Alternatively, the pharmacist could provide the same information to the patient . . . [D]efendant is not being asked to learn the customer's condition, nor is defendant being required to render a medical judgment or interject itself into the doctor-patient relationship. Instead, [the pharmacy] need only pass along to the customer or the physician the information it already possesses about the contraindication for this specific customer." Id., 187.
In Deed v. Walgreen Co., supra, 38 Conn. L. Rptr. 311, the court struck most of the plaintiff's allegations of negligence against defendant Walgreen, the pharmacy, but denied the motion as to two, in which the plaintiff alleged that the "decedent's death was caused by Walgreen's negligence in the following ways: . . . g. In that Walgreen's knew or should have known that the combination of medications being supplied to the decedent would cause her harm and could have and should have taken measures to remedy or correct it, but that the decedent negligently and carelessly failed to do so; . . . j. In that Walgreen's to fill prescriptions for medications it knew or should have known would cause harm and/or death to the decedent . . ." Deed v. Walgreen Co., supra, 38 Conn. L. Rptr. 311, n. 1. The court stated, "Each of these allegations, if proven true, might fall into the first exception to the learned intermediary doctrine listed above." Id.
As to paragraph j, it appears that words are missing from the quoted allegations.
As in Deed v. Walgreen Co., supra, "[t]he one exception to the doctrine which the plaintiff claims applies here arises `when . . . a pharmacy or pharmacist has specific knowledge of potential harm to specific persons in particular cases.' . . . When that situation exists, the pharmacy has a duty to warn and may be liable for the consequences of its failure to do so." (Citation omitted.) Deed v. Walgreen Co., supra, 50 Conn.Sup. 341-42.
A central aspect of the trial courts' analyses in Deed v. Walgreen Co. is that the inquiry as to whether an exception to the learned intermediary doctrine is applicable is fact specific. Such factual determinations may not be made on a motion to strike. See Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 704-05, 694 A.2d 788 (1997).
While the movants assert, in their reply, page 5, that the plaintiffs have alleged no facts to support the allegation that Mary Ellen Levesque communicated her allergy to the pharmacy, such as when she gave this information, or to whom, a plaintiff is not required to plead evidentiary facts. "[M]atters of evidence are not required to be stated in the complaint; see Practice Book § 10-1 . . ." Craig v. Driscoll, 262 Conn. 312, 344 n. 23, 813 A.2d 1003 (2003). The movants may undertake discovery to obtain information concerning when and to whom Mary Ellen Levesque alleges she communicated information about her allergy.
As noted above, here, the plaintiffs allege that Mary Ellen Levesque communicated her sulfa allergy to her physician and to the Price Chopper pharmacy prior to March 17, 2005, the date when her prescription for Bactrim was filled. See complaint, third, fourth, seventh, and eighth counts, ¶ 10. The plaintiffs also allege that the movants were negligent, in that they dispensed to her a medication to which she had a documented allergy, and failed to check her record for a documented allergy prior to filling the prescription. See complaint, third, fourth, seventh and eighth counts, ¶ 16. The court is obligated to "construe the complaint in the manner most favorable to sustaining its legal sufficiency." Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). As in Deed v. Walgreen Co., supra, 38 Conn. L. Rptr. 311, these allegations, if proven true, might fall into the first exception to the learned intermediary doctrine, concerning whether the pharmacy or pharmacist has specific knowledge of potential harm to a specific person in a particular case. Accordingly, the motion to strike is denied.
At oral argument, the plaintiffs agreed with the movants' contention that the court should not consider the plaintiffs' reference, in their memorandum of law in opposition, to a good faith certificate which they filed. In adjudicating the motion, the court has not considered the good faith certificate.
CONCLUSION
For the foregoing reasons, the motion to strike is denied.