Randol Mill Pharmacy v. Miller
Texas Supreme Court, No. 13-1014 (April 24, 2015)
Opinion by Justice Lehrmann
Ness v. ETMC First Physicians
Texas Supreme Court, No. 14-0353 (April 24, 2015)
Per Curiam Opinion
Last week, the Texas Supreme Court issued two opinions furthering clarifying when an expert report is required and when an expert report is sufficient. It concluded that a compounding pharmacy and its pharmacists are “health care providers” subject to the protections of Chapter 74 and that an expert report may be sufficient, even if it contains internally inconsistent opinions.
The first case, Randol Mill Pharmacy v. Miller, involved a question of first impression: whether a pharmacist who provides compounded drugs that are administered by a physician is a “health care provider” under Chapter 74 of the Texas Civil Practice and Remedies Code. Chapter 74 specifically includes pharmacists in the definition of health care provider, but then defines “pharmacist” as a person licensed under the Texas Pharmacy Act who “dispens[es] prescription medicines which result in health care liability claims.” The definition expressly excludes licensed pharmacists who are sued for other causes of action, including “for the sale of mishandled or defective products.” The pharmacy and pharmacists at issue in this case were accused of negligently compounding a batch of lipoic acid, which was later administered to the plaintiff in her physician’s office, allegedly causing her injuries. The Court undertook a lengthy analysis of the Chapter 74 definitions as well as those in the Texas Pharmacy Act and concluded that a pharmacist who prepares drug compounds for use in a physician’s office is “dispensing prescription medicines,” and not manufacturing or selling a product, and is therefore subject to Chapter 74. Plaintiffs had not served the defendants with an expert report as required under Chapter 74, so the trial court erred in refusing to grant the defendants’ motion to dismiss.
In the second case, Ness v. ETMC First Physicians, the Court examined the sufficiency of an expert report submitted in a case involving the death of a two-month-old child from pertussis (whooping cough). The trial court found the report sufficient, but the Tyler Court of Appeals disagreed and ordered the suit dismissed. The Supreme Court held that the trial court had not abused its discretion and remanded the case to the trial court for further proceedings. The expert had opined that (1) the standard of care would have required the ER doctor who first saw the child to order laboratory tests and prophylactic antibiotics, (2) had the ER doctor performed those tests they would have revealed the child had Bordetella pertussis “at a treatable stage,” and (3) had the child been timely treated with antibiotics, he would have had a 51% or better chance of survival. Other statements in the expert’s report, however, seemed to undermine those opinions, including that pertussis vaccination is important because “treatment is of little benefit to the person infected” and that antibiotics are recommended because they may “shorten the duration of infectiousness.” The defendants argued—and the Court of appeals agreed—that, read in its entirety, the expert report led to the conclusion that earlier administration of antibiotics would not have significantly increased the child’s chances of survival and that the report therefore failed to demonstrate causation. The Supreme Court disagreed, holding that the appellate court “did not fully credit” the expert’s statements supporting causation and that the trial court did not abuse its discretion in finding the report was a good faith effort to comply with Chapter 74’s requirements. The Court noted that the job of reviewing and sorting out the expert’s opinions and resolving any inconsistencies belongs to the trial court and that the trial court could have reasonably concluded that the expert adequately explained how timely treatment with antibiotics would have prevented the child’s death.
