Opinion
No. CV 08-5017128
July 31, 2008
MEMORANDUM OF DECISION RE Motion to Strike No. 101
Caroline Henderson (d.o.b. 12/21/2004) is a minor and the child of Diana and Stephen Henderson. The Hendersons are all plaintiffs in this matter and have brought suit against CVS Pharmacy, Inc. and Katie Boynes, a pharmacist employed by CVS. The plaintiffs allege that the defendants provided incorrect prescription medication and instructions for use by Caroline Henderson.
The plaintiffs' complaint alleges that Caroline Henderson was prescribed Augmentin Suppression and A/B Otic Ear Drops QUA, but that the defendants negligently and recklessly provided Zithromax instead. The plaintiffs allege that Caroline Henderson ingested high dosages of Zithromax and experienced related side effects; that the conditions for which her medications were prescribed were exacerbated as a result of receiving improper medication and instructions; and that she experienced loss of sleep, underwent physical and mental suffering, and has been unable to resume and enjoy her usual activities. Consequently, the plaintiffs claim they have all had to expend large sums of money to help Caroline Henderson recover from these injuries and that she may possibly have to continue such treatment in the future and, therefore, expend even greater sums. Finally, Diana and Stephen Henderson claim that, as a result of their daughter's suffering, they too have experienced emotional distress that is likely to lead to future physical suffering.
There are five counts in the complaint made by the plaintiffs. In order, the counts allege negligence, recklessness, statutory violations of Connecticut General Statutes § 52-42b (products liability), economic loss by the parents, and emotional distress suffered by the parents. The defendants have filed a motion to strike each count of the complaint. At oral argument the defendant did not pursue the motion as to the first and fourth counts. This memorandum addresses the second (recklessness), third (products liability), and fifth (emotional distress) counts.
DISCUSSION CT Page 12631
The defendants' motion to strike is "[t]he proper method to challenge the legal sufficiency of a complaint . . . prior to trial." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).Second Count — Recklessness
In claiming that the defendants acted recklessly in improperly dispensing medicine for use by Caroline Henderson, the plaintiffs allege in paragraph 9 of their complaint that "[t]he injuries suffered by . . . Caroline Henderson . . . were caused by the Defendants' reckless disregard for customers in that . . . they provided . . . Caroline Henderson . . . with the wrong medication and wrong instructions for her condition and did nothing to check the accuracy of the medications provided to her despite their clear professional responsibility to do so, and the grave danger posed to her by virtue of dispensing the wrong medications and instructions."
The defendants counter that the facts, as set forth in the plaintiffs' complaint, do not satisfy the requirements for a claim of recklessness. The defendants argue that the second count merely alleges negligence, but labels it as recklessness by stating conclusions of law.
"[Recklessness] requires an extreme departure from ordinary care . . . [N]egligence and wilful and wanton misconduct are separate and distinct causes of action . . . There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on . . . Merely using the term `recklessness' to describe conduct previously alleged as negligence is insufficient as a matter of law." (Citations omitted; Internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 705, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).
"Recklessness entails something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . Willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 350 n. 11, 885 A.2d 734 (2005).
In this matter, the plaintiffs allege that the pharmacy dispensed the wrong medicine and provided incorrect instructions. The Superior Court has previously held that an allegation of recklessness was sufficient when the pharmacy was given notice that the medication they provided was of the wrong kind, but still failed to remedy their error when given the opportunity. See Stanko v. Bader, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 03 0193669 (October 7, 2003, D'Andrea, J.T.R.) (35 Conn. L. Rptr. 605). In Altieri v. CVS Pharmacy, Inc., Superior Court, judicial district of Waterbury, Docket No. X06-CV-02-0171626 S (December 13, 2002, McWeeny, J.) (3 Conn. L. Rptr. 605), the court found that the plaintiffs had distinguished their recklessness claim from their negligence claim by adding terms that, when viewed in a light most favorable to the plaintiff, made it possible for a trier of fact to find that the defendant had acted recklessly.
In reviewing the allegations made by the plaintiffs in the present matter, they have done more than just relabel their negligence claim. Paragraph 8 of the first count, alleging only negligence, states that the harm to Caroline Henderson was caused by "the failure of the Defendants . . . to exercise reasonable care and skill in the provision of pharmaceutical services, in that they improperly filled prescriptions for Augmentin Suppression and A/B Otic Ear Drops QUA for the Plaintiff . . ." Whereas, in paragraph 9 of the second count, alleging recklessness, the plaintiffs have distinguished their allegation by stating that the defendants not only provided the wrong medication and instructions, but also "did nothing to check the accuracy of the medications provided [to the plaintiffs] despite their clear professional responsibility to do so, and the grave danger posed to [the plaintiffs] by virtue of dispensing the wrong medications and instructions." The plaintiffs have, in fact, differentiated the first two counts by alleging in the second count that the defendants had a professional responsibility that was ignored by them and that they did so even in the face of great danger that could befall someone who was to receive the medication they dispensed. The plaintiffs have not merely appended adjectives to their negligence complaint. The foreseeable danger is inherent in that a mistake by them regarding type of medicine, dosage, or instructions as to use could have serious health risks for someone taking those medicines.
The plaintiff's allegations of recklessness are not merely allegations of negligence suffused with legal conclusions. When the pleadings are construed broadly, it is apparent that there are alleged facts contained within the second count that could allow for a finding that the defendants acted recklessly.
The motion to strike the second count is denied.
Count Three — Product Liability
The motion to strike the third count of the plaintiffs' complaint is based on the defendants' assertion that, because a pharmacist is not a product seller, the Connecticut Product Liability Act (CPLA) does not apply to the present case. The CPLA, § 52-572m et seq., provides for a liability claim to be brought for "all claims or actions brought for personal injury . . . caused by the manufacture, construction, design, formulation, preparation, assembly, installation, testing, warning, instructions, marketing, packaging or labeling of any product . . . [and] shall include, but is not limited to, all actions based on . . . [s]trict liability in tort [or] negligence . . ." General Statutes § 52-572m(b). According to § 52-572n(a), claims made under the CPLA are only available against a "product seller." As defined in the statute, a "product seller" is "any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption." General Statutes § 52-572m(a).
There does not appear to be any appellate level guidance as to whether a pharmacist who misfills a prescription qualifies as a product seller under the CPLA. In the Superior Court there is a split of authority. See Silva v. Walgreens Eastern Co., Superior Court, judicial district of Fairfield, Docket No. CV 04 4001615 (October 24, 2005, Radcliffe, J.) (40 Conn. L. Rptr 187) (Holding that misfilling pharmacists are product sellers); Silber v. Walgreen Co., Superior Court, judicial district of New Haven, Docket No. CV 04 4009662 (May 4, 2005, Thompson, J.) (39 Conn. L. Rptr. 271) (Holding that misfilling pharmacists are not product sellers); Altieri v. CVS Pharmacy, Inc., supra, 3 Conn. L. Rptr. 524 (Holding that misfilling pharmacists are not product sellers); Stanko v. Bader, supra, 35 Conn. L. Rptr. 605 (Holding that misfilling pharmacists are a product seller); and Stevens v. Romer, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No, CV 98 0168402 (March 24, 1999, D `Andrea, J.) (24 Conn. L. Rptr. 279) (Holding that misfilling pharmacists are a product seller).
To reach an answer, the court must consider the relationship between the pharmacist and the customer. In Truglio v. Hayes Construction Co., 66 Conn.App. 681, 785 A.2d 1153 (2001), the court guided the product seller inquiry toward an examination of whether "a sale of a product is a principal part of the transaction and where the essence of the relationship between the buyer and seller is not the furnishing of professional skill or services." (Internal quotation marks omitted.) Id., 685. The Truglio inquiry is especially helpful when, as the split in Superior Court decisions have shown, a transaction has characteristics that could qualify the seller in the transaction as a product seller under the CPLA or as exempt under the CPLA for providing a professional skill or service. Prescription drugs have, arguably, been determined to be products in the context of the CPLA. See Vitanza v. Upjohn Co., 257 Conn. 365, 778 A.2d 829 (2001) (The Supreme Court, by permitting an affirmative defense on behalf of a prescription drug manufacturer in a products liability case, implicitly recognized prescription drugs as products). But, for a more complete analysis of the transaction, in light of the Truglio inquiry, it is necessary to determine whether pharmacists, even if dealing with products, are providing professional services or skill in the transaction.
Though the CPLA itself is silent on pharmacists, and there is no binding appellate authority on the subject, it is helpful to look at how Connecticut has defined pharmacists through other legislation. "In construing [§ 52-572m et seq.] it is therefore necessary and proper for this court to look to other statutes to determine whether [an activity] is the sale of a product." Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403-04, 528 A.2d 805 (1987) (Considering whether blood transfused to a patient by a hospital constituted a product sale under the CPLA). Section 20-571(17) of the General Statutes defines "pharmacist" as "an individual who is licensed to practice pharmacy under the provisions of section 20-590, 20-591, 20-592 or 20-593, and who is thereby recognized as a health care provider by the state of Connecticut." Within the same title of the General Statutes, "health care provider" is considered "a person licensed to provide health care services under [the Pharmacy chapter of the General Statutes (400j)]." General Statutes § 20-7f(a)(2). Under § 19a-17b(1) a health care provider "means any person, corporation, limited liability company, facility or institution operated, owned or licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment." A pharmacist then is a health care provider and, as such, provides health care or professional services. That pharmacists provide professional services is further reinforced under §§ 33-182a(1) and 34-101(23), where pharmacists are specifically categorized as providing professional services.
In the context of the transaction between the plaintiffs and defendants, it is important to note that § 20-571(21) defines the practice of pharmacy as "the sum total of knowledge, understanding, judgments, procedures, securities, controls and ethics used by a pharmacist to assure optimal safety and accuracy in the distributing, dispensing and use of drugs and devices." More specifically, to "dispense" prescription drugs is considered, under § 20-571(9), to be "those acts of processing a drug or device for delivery or for administration for a patient pursuant to a prescription consisting of: (A) Comparing the directions on the label with the directions on the prescription to determine accuracy; (B) the selection of the drug or device from stock to fill the prescription; (C) the counting, measuring, compounding or preparation of the drug or device; (D) the placing of the drug or device in the proper container; (E) the affixing of the label to the container; and (F) the addition to a written prescription of any required notations." The overall effect of these statutes permits the court to discern that a pharmacist provides a professional skill or service when practicing pharmacy, which he does when he dispenses prescription drugs.
The statute continues by saying: "`Dispense' does not include the acts of delivering a drug or device to a patient or of administering the drug or device to the patient." For the transaction between the Hendersons and CVS it is important to note that the plaintiffs complaint alleges that CVS "packaged" the medication it sold to the Hendersons. This would appear to indicate that the plaintiffs' are asserting the defendants did more than just deliver or administer the drugs. The language of the complaint would seem to qualify the defendants' acts as "dispensing," at least, under subsections (B), (C), and (D) of § 20-571(9).
"Once a particular transaction is labeled a `service,' as opposed to a `sale' of a `product,' it is outside the purview of our product liability statute." Zichichi v. Middlesex Memorial Hospital, supra, 204 Conn. 403. A pharmacist then is considered, under Connecticut statutes, to be a licensed health care provider providing professional services and, therefore, cannot be a product seller for the purposes of a suit brought under the CPLA.
The motion to strike the third count is granted.
Count Five — Bystander Emotional Distress
In the fifth count of the complaint, the plaintiffs allege that Caroline Henderson's parents and guardians, Diana and Stephen Henderson, experienced emotional distress as a result of the harm done to their daughter. The defendants correctly point out the elements of bystander distress as laid down by the Connecticut Supreme Court. For a claim of bystander distress to be successful, it must be shown that: "[A] bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location; (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response." Clohessy v. Bachelor, 237 Court. 1, 56, 675 A.2d 852 (1996).
The defendants claim that the plaintiffs fail to provide sufficient facts regarding the third element required by Clohessy. The plaintiffs do not allege the death of Caroline Henderson, so it is incumbent upon them to have alleged facts sufficient to qualify as "serious physical injury." The plaintiffs have alleged that Caroline Henderson "has suffered the following injuries some or all of which may be permanent in nature: a. ingested high doses of zithromax; b. suffered from side effects related to ingesting high doses of zithromax; c. exacerbation of bilateral otitis media; d. loss of sleep; and e. pain and suffering, both mental and physical." Reviewing these allegations the court, while mindful of how stressful it is for parents to have a sick child, concludes that they do not in and of themselves allege a "substantial injury" or "serious physical injury." It may be that there are other injuries or consequences for the minor child but they have not been plead in a sufficient manner to withstand a motion to strike.
Otitis media, as described on the website of the National Institute on Deafness and other Communication Disabilities (www.nidc.nih.gov) "is an infection or inflammation of the middle ear. This inflammation often begins when infections that cause sore throats, colds, or other respiratory or breathing problems spread to the middle ear. These can be viral or bacterial infections. Seventy-five percent of children experience at least one episode of otitis media by their third birthday. Almost half of these children will have three or more ear infections during their first 3 years."
The defendant further argues, that the court should adopt Connecticut caselaw regarding bystander distress and medical malpractice. The court declines the defendants' invitation to expand the restriction to include pharmacists.
In those cases it has been found that deference must be given to medical professionals to attend to the patient, and that to provide bystanders with the ability to assert bystander distress claims could lead to strains on hospitals that are too great to expect them to bear. See Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988); Estate of Mandile v. Dziczkowski, Superior Court, judicial district of Hartford, Docket No. CV 06 5002429 (September 26, 2007, Miller, J.) [44 Conn. L. Rptr. 245]. Of the costs mentioned in Maloney are that hospitals might be forced to restrict the ability of the patient to receive visitors, or that medical staff would have to attend to all concerns visitors had about the patients, even when such concerns are "uninformed." Maloney v. Conroy, supra, 208 Conn. 403. Maloney and the resulting line of cases that have denied bystander emotional distress claims have done so based on the public policy interest of permitting hospitals to use their expert judgment at providing medical care and focus their attention on the patient in their care. It is not clear that this public policy concern is applicable to a situation where a pharmacy provides an incorrect prescription. A pharmacist who dispenses medicine from a retail store does not have the same relationship with the recipient of the medicine as a doctor does with a patient who is brought to a hospital and cared for on the hospital premises. The concerns echoed by Maloney are not readily apparent in the pharmacist-customer relationship. Expanding the medical malpractice restriction on bystander emotional distress to cases involving off-site retail pharmacists has no basis in the current caselaw.
The motion to strike the fifth count is granted.
CONCLUSION
In summary, the defendant has withdrawn its motion to strike as to counts one and four, the court denies the motion to strike the second count and the court grants the motion to strike as to the third and fifth counts.
CT Page 12637