North Carolina Lawyers Weekly
By Peter Vieth
A woman’s failure to read the label on a bottle of pills was not contributory negligence as a matter of law, the 4th U.S. Circuit Court of Appeals court said in the case of a pharmacy that mailed the wrong medicine to a patient.
The decision by the 4th Circuit in a North Carolina case apparently addresses an issue of first impression: liability for harm caused by mistakes in filling prescriptions.
The appeals panel also said the trial court was too quick to reject theories of a “snowball effect” in relating the mistaken drugs to the patient’s death six weeks later.
The court’s opinion is Small v. WellDyne Inc. (Lawyers Weekly No. 001-110-19, 14 pp.). Judge A. Marvin Quattlebaum Jr. wrote the opinion for the three-judge panel.
Package of pills
Bertha Small of Fayetteville, N.C., regularly received her prescription medications by mail, according to the court’s summary of evidence. On Nov. 19, 2013, she received a package of medications from her usual supplier. But the six medications in the familiar-looking package were not intended for her. They were supposed to be sent to another patient in California.
The label on each bottle listed the California patient’s name, the California doctor and the name of the medication. However, Small, 74, was barely literate. She did not read the labels of the bottles before taking some of the pills.
A family friend said he saw Small take the medications the day they arrived. A daughter said she warned her mother not to take the medications, but that warning could have come the day after the medications arrived.
Afterwards, Small experienced confusion and hallucinations. A few days later, she fell and broke her leg. Other problems arose during hospital treatment. She died Feb. 2, 2014, the court opinion said.
Two experts on behalf of the family said Small’s death was the result of a chain of events started by her ingesting medication intended to treat high blood pressure. The experts opined that the medications were the cause of her death through a “cascade or domino effect.” One expert likened it to a “snowball effect.”
Out of court
On behalf of Small’s estate, her son sued two companies involved in the growing mail-order pharmacy industry. One of the defendants, WellDyne, was under a contract to fill and ship prescription medication to customers of the other company, Exactus Pharmacy Solutions.
The case came before Chief U.S. District Judge Terrence W. Boyle of the Eastern District of North Carolina. He granted summary judgment on all counts for both defendants.
He held that Small was contributorily negligent as a matter of law, completely barring her recovery under North Carolina law. Boyle said Small acted unreasonably by neither reading the labels nor heeding her daughter’s warnings.
Moreover, Boyle rejected the experts’ conclusions, ruling the connection between the misdelivered medications and Small’s death was too attenuated, precluding proximate causation.
Measuring negligence
On appeal, Fayetteville’s Marshall B. Pitts Jr. argued the contributory negligence ruling sent a harmful message.
“We think that portion of the decision has far-reaching implications and will affect potentially millions of consumers at a time when we as a country are going in a different direction when it comes to prescription drugs,” Pitts told the three-judge appeals court panel on March 20.
Judge J. Harvie Wilkinson III seemed to agree, noting that senior citizens consume a “disproportionate” amount of prescription medications.
“You’re dealing with a vulnerable section of our population that you want to bend over backwards to protect,” Wilkinson said, addressing the defense of contributory negligence.
WellDyne counsel Demetrius W. Berry of Greensboro contended Small acted carelessly when she failed to check the labels. Wilkinson was doubtful.
“The problem was created by your client,” Wilkinson said. “It’s serious business. Part of the function of tort law is deterrence — and deterrence of careless behavior,” he added.
Berry said WellDyne had a good safety record and took the risk of mistakes seriously.
“That does not negate that an ordinary prudent person has a duty to take and exercise reasonable care which would include looking at medications received to determine if they’re for you, what they are, how they should be consumed and when they should be taken,” Berry said.
Other members of the panel were Judges Pamela A. Harris and Quattlebaum.
‘Scant caselaw’
In its decision, the appeals panel reversed the grant of summary judgment on contributory negligence and causation and remanded the case for vetting of the plaintiff’s experts. The court affirmed dismissal of Exactus, which argued it had no involvement in delivery of the medication.
The panel observed that there is “scant caselaw” nationwide about harm from misdelivered medications. North Carolina apparently has no such cases on record. Wilkinson suggested at argument that could be because most such cases settle. Nevertheless, the court said in its opinion that contributory negligence is ordinarily a jury matter.
“Summary judgment is rarely appropriate for issues of contributory negligence,” wrote Quattlebaum for the unanimous panel.
Pointing to a North Carolina case involving a toxic chemical supplied for floor treatment, the judges said they could not say, as a matter of law, that Small was contributorily negligent for failing to read the labels on the medications.
Causation
The panel also said proximate cause is ordinarily a jury question under North Carolina law.
“The district court’s assessment of the opinions of Ms. Small’s experts may be correct. However, at this stage of the case and without first evaluating the admissibility of the expert testimony, the court’s assessment results from improperly weighing the evidence,” Quattlebaum wrote.
The court said it was now appropriate for Boyle to conduct a Daubert analysis of Small’s proffered expert testimony.
Pitts welcomed the 4th Circuit’s rejection of summary judgment.
“From a practical impact perspective, the district court’s ruling on this case would have created a disincentive for mail-order pharmacies to exercise the utmost care when placing medications into the stream of commerce. Consequently, the consuming public would have been exposed to a much greater risk of harm via misdelivered medications,” Pitts said in an email.
The Small family was also represented by Willie D. Gilbert II of Wilson, N.C.
WellDyne said through a spokesperson it would have no comment on the case while litigation is pending.
Barry S. Cobb of Raleigh represented Exactus.
