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Morgan v. Publix Super Mkts., Inc.

Supreme Court of Alabama

August 16, 2013

Michelle D. Morgan
v.
Publix Super Markets, Inc

Released for Publication June 6, 2014.

Appeal from Jefferson Circuit Court. (CV-11-903523). Elisabeth French, Trial Judge.

For Appellant: William L. Pfeifer, Jr., Birmingham and Oscar Morgan III, Birmingham.

For Appellee: Patrick G. Montgomery and Ralph D. Gaines III of Gaines, Gault & Hendrix, PC, Birmingham.

STUART, Justice. Moore, C.J., and Parker, Shaw, and Wise, JJ., concur.

OPINION

Page 983

STUART, Justice.

Michelle D. Morgan appeals the summary judgment entered by the Jefferson Circuit Court in favor of Publix Super Markets, Inc., on Morgan's claim alleging a violation of the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975 (" the AMLA" ). We reverse and remand.

I.

On December 19, 2010, Morgan went to the pharmacy at the Publix grocery store at 7272 Gadsden Highway in Trussville to

Page 984

refill her prescription for amlodipine, a medication used to treat hypertension. Morgan had used this Publix pharmacy to fill this prescription, as well as other prescriptions, for several years without incident. However, on this occasion, the refill Morgan was given contained a mix of both amlodipine and furosemide pills.[1] Both pills are apparently small, round, and white, and Morgan, not noticing a difference in this refill, proceeded to ingest one pill from the container each day for approximately the next two weeks. During this time, she began experiencing physical problems including swelling on her face, tingling lips, hives, and painful scales and hyperpigmentation around her mouth and eyelids. Believing she was experiencing an allergic reaction to something, Morgan treated these symptoms with Benadryl, an over-the-counter antihistamine.

After approximately two weeks, Morgan returned to the Publix pharmacy to fill another prescription. Megan Locklear, the assistant pharmacy manager, approached Morgan at that time and told her that her last amlodipine refill had accidentally been partially filled with furosemide. Locklear further told Morgan that the pharmacy could not account for approximately 10 or 12 furosemide pills and gave Morgan the identification number printed on the furosemide pills. After returning home, Morgan discovered approximately two furosemide pills among the pills remaining in her amlodipine refill. Locklear subsequently telephoned Morgan, told her not to take any of the pills, and offered to refill the prescription. Morgan instead transferred the prescription to a different pharmacy and disposed of the remaining pills.

Morgan thereafter consulted with her primary-care doctor, a dermatologist, and an allergist regarding the symptoms that she began experiencing after receiving the December 19, 2010, refill from the Publix pharmacy. She testified in a subsequent deposition that the hives and facial swelling went away fairly quickly after taking Benadryl and undergoing a steroid treatment; however, she also testified that it took almost a year and microdermabrasion treatments before the hyperpigmentation and scales were fully resolved.

On October 5, 2011, Morgan sued Publix, alleging that she had sustained injuries as a result of the pharmacy's negligent issuance of the wrong medication. In its answer, Publix denied causing Morgan's injuries, asserted that her lawsuit was governed by the AMLA, and denied breaching any applicable standard of care. Following the close of the discovery period set forth by the trial court, Publix moved for a summary judgment, arguing that Morgan could not meet her burden of proof under the AMLA because she had not identified any expert witness who was qualified to testify that the Publix pharmacist who filled the prescription had breached the applicable standard of care. Morgan opposed the motion and, while acknowledging that her claim was governed by the AMLA, argued that a pharmacy's negligence in dispensing the wrong medication was so apparent that a layperson could understand it without the assistance of expert ...


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