Randol Mill Pharmacy v. Miller from Court of Appeals of Texas, Second District, Forth Worth: Addressing issue of whether a pharmacist's act—of filling a bulk phone order placed by a doctor for over twenty 30-milliliter vials of an injectable form of the antioxidant supplement lipoic acid for use in the doctor's office—constitutes dispensing a prescription medicine as required for the pharmacist to qualify as a health care provider under the Texas Medical Liability Act (TMLA).

RANDOL MILL PHARMACY; KVG ENTERPRISES, INC.; GARY G. DALEY; JOHN WAYNE BAILEY; JAMES ROBERT FORSYTHE; KEVIN LYNN HEIDE; JULIE KNOWLTON LUBBERT; AND CARA MORRELL, Appellants,
v.
STACEY MILLER AND RANDY MILLER, Appellees.

No. 02-12-00519-CV.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: September 19, 2013.

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ. LIVINGSTON, C.J. filed a dissenting opinion.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

The primary issue we address in this appeal is whether a pharmacist's act—of filling a bulk phone order placed by a doctor for over twenty 30-milliliter vials of an injectable form of the antioxidant supplement lipoic acid for use in the doctor's office—constitutes dispensing a prescription medicine as required for the pharmacist to qualify as a health care provider under the Texas Medical Liability Act (TMLA). SeeTex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(12)(A)(iv), (22) (West Supp. 2012). Because we hold that the answer to this question is no, we will affirm the trial court's order denying Appellants'^[1] motion seeking dismissal of Appellees Stacey Miller and Randy Miller's suit based on the failure to file a chapter 74 expert report. See id. § 74.351 (West 2011).

II. FACTUAL AND PROCEDURAL BACKGROUND

Stacey was diagnosed with Hepatitis C. To treat Stacey's previously diagnosed Hepatitis C, Dr. Ricardo B. Tan began administering weekly injections of the antioxidant supplement lipoic acid. After nine weeks of treatment, Stacey began an episode of violent nausea and vomiting when Dr. Tan administered an injection of lipoic acid to Stacey on December 5, 2011. She was transported to the hospital where, according to her pleadings, she experienced "violent nausea, vomiting, tachycardia, severe back pain, neck and body pain, abdominal pain, diarrhea, a hematemesis/UGI bleed, acidosis, elevated CPK, electrolyte abnormality, fever, irritability, confusion, lethargy, muscle weakness, blurry vision with dark spots, hemorrhages in both eyes, right pleural effusion, hypotension, enlarged spleen, fluid in her gallbladder with surrounding fluids, a large amount of upper ABD ascites, periportal edema, and diverticulosis." Stacey was hospitalized for several weeks and underwent multiple blood transfusions. As a result of this episode, she was rendered blind in both eyes.

Stacey and her husband Randy filed suit against Appellants alleging that Appellants had manufactured, distributed, and sold a defective product— injectable lipoic acid; failed to give physicians, as learned intermediaries, adequate and proper warning with respect to the risks associated with the use of lipoic acid; and breached implied warranties in the design, manufacture, inspection, marketing, and distribution of lipoic acid because it was not reasonably suited for the purposes and use for which it was intended and was not of merchantable quality. The Millers did not file an expert report under the TMLA. Appellants filed a motion to dismiss, claiming that the Millers' suit against them was a health care liability claim governed by the TMLA. The Millers filed a response, attaching numerous documents generated through the investigation launched by the Texas Department of State Health Services (TDSHS) concerning Appellants' manufacture of the injectable lipoic acid and Stacey's injuries. After a hearing, the trial court signed an order denying Appellants' motion to dismiss; Appellants perfected this appeal.

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