WILLIAM JASON SCHEIL

1618 Laurelwood Lane Montgomery, AL 36117 (912) 670-0092 william.j.scheil@gmail.com

Writing Sample MEMORANDUM

I. Introduction
This memorandum addresses the common law definition of gross negligence as construed by Mississippi courts. Additionally, this memorandum includes a brief discussion of several cases relevant to a pharmacists potential civil liability for negligently filling a prescription with the wrong medication.

II. Issues
A. What is the standard for gross negligence in Mississippi?
B. Whether regulations promulgated by the State Board of Pharmacy create or

define the duty of care a pharmacist must exercise when filling prescriptions?

III. Short Answer

A. Gross negligence is that course of conduct which, under the particular

circumstances, discloses a reckless indifference to consequences without the exertion of any substantial effort to avoid them.1
B. Regulations promulgated by the State Board of Pharmacy neither create nor

define a pharmacists legal duty of care. Instead, injury caused by a violation of such regulations merely provides evidence of negligence.2

IV. Mississippi Common Law Definition of Gross Negligence

In Mississippi, gross negligence, as opposed to ordinary negligence, identifies a category of tortious conduct that, although not an intentional tort, exhibits the tortfeasors reckless disregard for the potential consequences of such conduct. The distinction between gross negligence and ordinary negligence has arisen in two contexts: 1) Determining whether a party is barred from recovery by the Mississippi Tort Claims Act; and 2) Determining whether negligent conduct evinces such recklessness as to justify an award of punitive damages. This memorandum addresses gross negligence in the context of punitive damages. In 2002, the Mississippi Supreme Court opined the following rule to help distinguish between gross and ordinary negligence in the punitive damages context, The rule is that simple negligence is not of itself evidence sufficient to support punitive damages, but accompanying facts and circumstances may be used to show that that portion of defendant's conduct which constituted a proximate cause of the accident was a willful and wanton or grossly negligent.3 The seminal case defining gross negligence is Dame v. Estes, which defines gross negligence as that course of conduct which, under the particular circumstances, discloses a reckless indifference to consequences without the exertion of any substantial effort to avoid them.4 The United States District Court for the Southern District of Mississippi recently
1 2 3 4

Dame v. Estes,

101 So. 2d 644, 645 (Miss. 1958). 825 So. 2d 658, 665 (2002). 822 So. 2d 911, 924 (Miss. 2002).

Moore v. Memorial Hosp. of Gulfport, Choctaw Maid Farms, Inc. v. Hailey,

Dame, 101 So. 2d at 645, quoted in Cone Solvents, Inc. v. Corvin, No. CIVA105CV419LGRHW, 2007 WL 628501, at *2 (S.D. Miss. Feb. 24, 2007).

noted that Mississippi common law defines reckless indifference as voluntarily committing an improper or wrongful act or with knowledge of existing conditions, the voluntary refraining from doing a proper or prudent act when such act or failure to act evinces an entire abandonment of any care, and heedless indifference to results which may follow and the reckless taking of a chance of an accident happening without any intent that any occur.5 Discussing the difference between gross and ordinary negligence, the Mississippi Supreme Court opined that in deciding whether to instruct the jury on punitive damages, the trial court must consider whether the evidence justifies a punitive damages instruction after it has reviewed all of the evidence. 6 Further, the trial court should make this decision with due regard for the policies that justify punitive damage awards. In other words, the trial court should consider whether an award of punitive damages would punish an act committed with sufficient culpability to justify pecuniary punishment and would deter others from wanton or malicious conduct so that the public may be properly protected. 7 Accordingly, punitive damages in suits alleging negligence are permitted only where the tortious conducts amounts to such gross and reckless negligence as is, in the eyes of the law, equivalent to a willful wrong.8
V. Board of Pharmacy Regulations

Regulations promulgated by the State Board of Pharmacy do not define the duty of care owed by a pharmacist to those for whom the pharmacist fills prescriptions.9 In Moore v. Memorial Hospital of Gulfport,10 the plaintiff sued, among others, a pharmacist for negligence in selling to a pregnant woman a prescription known to cause harm to a fetus.11 Although the pharmacist correctly filled the prescription, the pharmacy had violated the State Board of Pharmacys internal regulations.12 On appeal from the trial courts order
5 6 7 8 9

Cone Solvents, 2007 WL 628501, at *2 (citing Jackson v. Payne, Choctaw Maid Farms, Id. Id. (citing e.g. Fowler Butane Gas Co. v. Varner, Moore v. Memorial Hosp. of Gulfport, 825 So. 2d 658 (2002). Id. at 662. 822 So. 2d 911, 923 (Miss. 2002).

922 So. 2d 48, 51-52 (Miss. Ct. App. 2006)).

141 So. 2d 226, 233-34 (1962)).

825 So. 2d 658 (Miss. 2002).

10 11

granting summary judgment in favor of defendant pharmacy, the Mississippi Supreme court stated, The State Board of Pharmacy is an administrative agency which governs the conduct of pharmacies within the State. See Miss. Code Ann. 73-21-71 to -123 (2000 & Supp. 2002). A violation of one of its internal regulations, which may serve as evidence of negligence, does not, however, create a separate cause of action. The regulations do not establish a legal duty of care to be applied in a civil action.13 Because the regulations neither create nor define a legal duty of care, violating a regulation set forth by the State Board of Pharmacy does not automatically result in civil liability.14
VI. Mississippi Case Law Addressing Pharmacists Liability for Punitive

Damages
In French Drug Company v. Jones, the Mississippi Supreme Court addressed several issues concerning the liability of a pharmacist for filling a prescription with the wrong medication.15 Although the court did not address directly the issue of punitive damages, dicta in the opinion indicates that compensatory damages sufficiently compensated the injured party and that punitive damages were not applicable.16 Specifically, the court stated, The record reveals that the lower court gave full and complete instructions on all other phases of the case. Instruction P15 is a general damage instruction. It correctly admonishes the jury as to what elements of damage it should consider and we can find no error whatever in its language and plain instruction to the jury. It's fully
12

Id. at 665. The court did not indicate what violation had occurred. Cf. Nelms v. Walgreen Co., No. 02A019805-CV-00137, 1999 WL 462145 (Tenn. Ct. App. July 7, 1999).
13 14

Id. (citing Morgan v. Wal-Mart Stores, Inc., Id.; accord Nelms, 1999 WL 462145, at *5.

30 S.W.3d 455, 466-67 (Tex. App. 2000)).

15 16

367 So. 2d 431 (1978). Id. at 434.

and completely follows the evidence regarding the elements of damage sustained by appellee and requires the jury to find those elements to be proven by a preponderance of the evidence.17 The courts analysis in French Drug Company could be construed to indicate that punitive damages are not applicable in a case involving a misfilled prescription, absent evidence that defendant acted with reckless indifference indicated by a higher degree of culpability than a mere mistake. The physician in French Drug Company prescribed Ethatab.18 The defendant pharmacist, however, filled the prescription with a drug called Estratab.19 Because the Mississippi Supreme Court opined that the trial court gave full and complete jury instructions and those instructions did not mention the availability of punitive damages, this case indicates that punitive damages may be improper in cases that lack some evidence of reckless or careless disregard. Although one could make this argument, the comparison of the legal standards and appellate cases from other jurisdictions that have addressed this issue, as discussed in the following section, provides the most compelling argument against allowing punitive damages.

VII. Other Jurisdictions Case Law Addressing Pharmacists Liability for Punitive Damages
In Nelms v. Walgreen Co.,20 the plaintiff appealed from a favorable verdict of $25,000, asserting that the trial court erred in directing a verdict in defendants favor on the issue of punitive damages. Plaintiff hand delivered a written prescription for Paxil to defendant pharmacy for his wife, which he picked up later that evening.21 Two weeks later, plaintiff again returned to the pharmacy to pick up a refill, only this time, plaintiff noticed that the pills differed in appearance from those that plaintiff had previously purchased. Upon returning to the pharmacy, the pharmacy informed plaintiff that the first prescription

17 18 19

Id. Id. at 432.

Id. The opinion did not indicate whether the prescription was called in to the pharmacy by phone, whether a written prescription was delivered to the pharmacy, or whether the pharmacist attempted to confirm the prescription.
20 21

1999 WL 462145. Id. at *1.

had contained the wrong medication and specifically, that the pharmacy had mistakenly issued Tagamet22 instead of the Paxil authorized by plaintiffs prescription.23 Several weeks later, plaintiffs wife became ill and was admitted to the hospital.24 Plaintiffs wife asserted that the misfilled prescription caused the illness and filed suit alleging that defendants negligence in filling the prescription with the wrong medication caused the illness. As relief, plaintiff sought compensatory and punitive damages. Plaintiffs wife died shortly thereafter.25 The Tennessee Court of Appeals affirmed the trial courts directed verdict in favor of the defendant on the punitive damages issue.26 The Court of Appeals held that Plaintiff failed to present clear and convincing evidence that [defendants] engaged in reckless conduct in connection with the misfilling of [plaintiffs] prescription.27 The court held that the following evidence failed to support plaintiffs allegation that defendant acted reckless: Walgreen Company permitted medications to be dispensed without verification by a pharmacist; Walgreen Company allowed Ed Daniel to be responsible for filling prescriptions despite the fact that Daniel had been counseled for failing to stay at his workstation to verify prescriptions; Walgreen Company permitted its pharmacy technicians to bag medications; and Walgreen Company scheduled three pharmacy technicians to work with one pharmacist when the Board of Pharmacy's regulations permitted a ratio of only two to one.28 Notwithstanding the panoply of irregular procedures and quasi-misconduct, the court held that such proof failed to establish by clear and convincing evidence that defendant acted recklessly.29 The court next turned to the remainder of plaintiffs assertions.
22 23 24 25 26 27 28 29

Tagamet is used to treat common stomach problems, such as ulcers and indigestion. Id. Id. Id. Id. Id. at *4. Id. Id.

Id. at *1.

As an alternate or additional basis for finding that the defendant acted recklessly, plaintiff offered evidence showing that defendant violated regulations promulgated by the Board of Pharmacy by not initialing the prescription as required and by exceeding the number of pharmacy technicians permitted to work under the supervision of one pharmacist.30 Holding that the rules and regulations promulgated by the Tennessee Board of Pharmacy do not necessarily establish the duty of care owed by a pharmacist, although they may provide guidance I determining if there is a duty of care under the circumstances, the court rejected plaintiffs contention that the violation gave rise to an inference of recklessness.31 Plaintiffs last theory in its quest for punitive damages alleged that defendant committed gross negligence because the defendant acted carelessly in the implementation and control of a dangerous or lethal instrumentality.32 The court stated that it found no authority for applying this [theory] to an action for professional negligence against a pharmacist.33 In an action against a pharmacist for negligence, the standard of care is that of generally rendered by the pharmacy profession under similar circumstances. Because the plaintiff failed to produce clear and convincing evidence that the defendant caused the plaintiffs injury through intentional, fraudulent, malicious, or reckless conduct, the court affirmed the trial courts directed verdict in favor of the defendant on the issue of punitive damages.34 Of all cases addressing punitive damages against a pharmacist for filling a prescription with the wrong medication, Nelms is the most analogous case in both the facts and the applicable law. Throughout the Nelms opinion, the Tennessee Court of Appeals applied similar, if not identical, standards to the standards that Mississippi courts apply to cases controlled by Mississippi law.35
30 31 32 33 34 35

Id. at *5. See Id. Id. Id. at *2, *6. id.

Compare Nelms, 1999 WL 462145, at *2-*3 (trial court must determine whether the plaintiff has presented clear and convincing evidence that the defendant engaged in intentional, fraudulent, malicious, or reckless conduct; courts may award punitive damages only in the most egregious of cases; twin purposes of punitive damages awards: to punish the wrongdoer and to deter the wrongdoer and others from committing similar wrongs in the future;), with MISS. CODE ANN . 11-1-65(1)(a) (2002 & Supp. 2006) (Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are

In contrast to Tennessee, Alabama36 state courts have allowed plaintiffs to seek punitive damages against a pharmacist or pharmacy for negligently filling a prescription with the wrong medication, notwithstanding a lack of evidence to support a higher degree of culpability. In Harco Drugs, Inc. v. Holloway, the plaintiff filed suit alleging that defendant negligently or wantonly filled plaintiffs prescription with the wrong medication and failed to supervise adequately the pharmacys operating procedures.37 At trial, the jury awarded plaintiff $100,000 in compensatory damages and $150,000 in punitive damages. From this judgment, defendant appealed, arguing that the trial judge erred in submitting the wantonness claim to the jury because the evidence failed to support such claim. The Alabama Supreme Court affirmed the trial courts decision to instruct the jury on the wantonness claim. In so finding, the court phrased the issue as whether the [plaintiff] presented sufficient evidence that [defendant] acted with reckless disregard for the safety of other generally.38 The court listed nine facts on which it relied in holding that sufficient evidence existed for the jury to find that defendant acted with conscious or reckless disregard for plaintiffs safety: (1) the prescription was illegible; (2) the pharmacist knew that the prescribing physician was an oncologist (a cancer specialist); (3) the pharmacist gave the plaintiff Tambocor, an antiarrhythmic drug used by cardiologists to treat arrhythmias and other serious heart ailments, Physicians' Desk Reference, 1387-88 (49th ed. 1995), although it is undisputed that the prescription actually called for Tamoxifen, a cancer fighting drug; (4) the pharmacist admitted that she realized at the time that she was giving the plaintiff Tambocor, a heart medication; (5) the pharmacist did not attempt to call the physician to verify the accuracy of her reading of the prescription and did not even try to question Ms. Holloway about why her oncologist was supposedly prescribing a heart medication for her; (6) the pharmacist did not re-read the prescription to verify the accuracy of her reading of
sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.), and Paracelsus Health Care Corp. v. Willard, 754 So. 2d 437, 442 (Miss. 1999) (Punitive damages are only appropriate in the most egregious cases so as to discourage similar conduct and should only be awarded in cases where the actions are extreme.), and Fowler Butane Gas Co. v. Varner, 141 So. 2d 226, 233-34 (1962) (the award is in the nature of a punishment for wrongdoing and an example, so that others may be deterred from the commission of such wrongs and the public be properly protected).
36 37 38

Harco Drugs, Inc. v. Holloway, Harco Drugs, Id. at 880.

669 So. 2d 878 (Ala. 1995).

669 So. 2d at 879.

it; (7) the prescription was again refilled incorrectly on two other occasions during a 5 1/2 month period; (8) after Ms. Holloway heard a news report about cancer and the newest treatment for cancer, which included use of the drug Tamoxifen, which was not what Ms. Holloway had been taking for 5 1/2 months, she inquired of Harco whether Tambocor was another name for Tamoxifen; and (9) only in that way was it determined that Harco had misfilled Ms. Holloway's prescription.39 The courts analysis emphasized the fact that the defendant knew the prescribing doctor was an oncologist and knew the prescription medication was a heart medication.40 Thus, one could plausibly argue that Harco stands for the proposition that where any reasonin hindsightexisted to question whether a prescription is correct, the pharmacist may be held liable for all injuries resulting from the misfilled prescription and the plaintiff may seek punitive damages without further evidence of culpability.41 In addition to Alabama courts, Iowa state courts have permitted plaintiffs to seek punitive damages against a pharmacist or pharmacy for negligently filling a prescription with the wrong medication. 42 In McClure v. Walgreen Co.,43 plaintiffa cancer patient received a prescription for Pepcid to assist with the side effects of chemotherapy. The prescription was delivered to the defendant pharmacy, and although the label on the prescription bottle listed Pepcid, someone at the pharmacy mistakenly filled the bottle with Paxil. While taking the wrong medication, plaintiffs motor skills deteriorated and eventually caused plaintiff to check in to a retirement home after she injuring herself in a fall. After several days at the home, one of the retirement home nurses noticed that the bottle labeled Pepcid actually contained Paxil. The nurse immediately contacted the plaintiffs treating physician, who ordered that plaintiff stop taking the Paxil immediately. Plaintiffs alleged that the withdrawal from ceasing to take the Paxil caused her to fall again, this time injuring her head, back, and pelvis. Plaintiffs family notified the pharmacy of the mistake, which responded by stating that it would file an incident report.

39

Id. Id. See Harco Drugs, 669 So. 2d 878. 613 N.W.2d 225 (Iowa 2000).

40 41 42 43

McClure v. Walgreen Co.,

613 N.W.2d 255 (Iowa 2000).

In the subsequent suit, plaintiffs sought compensatory and punitive damages for willful and wanton disregard for plaintiffs rights. The jury responded by awarding plaintiff $100,000 compensatory damages and $150,000 punitive damages. The defendant appealed, arguing that the trial court erred in denying the defendants motion for directed verdict on the punitive damages issue because the plaintiff failed to present evidence sufficient to support an award for punitive damages. Iowa statutory law limits punitive damages to those cases where plaintiff shows by a preponderance of clear, convincing, and satisfactory evidence, the conduct of the defendant from which the claim arose constituted willful and wanton disregard for the rights or safety of others.44 The Iowa Supreme Court considered whether the evidence supported an award for punitive damages under this statutory standard. Notwithstanding a spirited dissent, the majority held that it was convinced there was sufficient evidence to submit the punitive-damage [sic] issue to the jury.45 Explaining its reasoning, the court noted that the evidence included 34 incident reports that the court characterized as nearly identical to the dispensing error in this case because like in the present case, the 34 instances involved medications that began with the same letter as the prescribed medication.46 The courts analysis particularly emphasized defendants failure to warn the plaintiff of the side effects that may accompany withdrawal from Paxil and stated that such failure constituted a significant factor in the events that caused plaintiffs second fall. Mississippi courts should neither adopt the McClure opinion nor find such opinion persuasive. Unlike other jurisdictions that use identical or substantially similar language with respect to the punitive damage standard, the Iowa punitive damage statute does not apply a similar standard for awarding punitive damages. For example, the Iowa punitive damages statute requires Iowa courts to inquire whether the plaintiff carried the burden of proof by a preponderance of clear, convincing, and satisfactory evidence.47 This standard

44 45 46

Id. at 230 (quoting Id. at 231.

IOWA CODE 668A.1 (1997)).

Id. (setting forth only the limited facts noted above with respect to the nearly identical errors). Contra Philip Morris USA v. Estate of Williams, No. 05-1256, 127 Sup. Ct. 1057, 1060 (Feb. 20, 2007) (We are asked whether the Constitutions Due Process Clause permits a jury to base that award in part upon its desire to punish the defendant for harming persons who are not before the court ( e.g., victims whom the parties do not represent). We hold that such an award would amount to a taking of property from the defendant without due process.).
47

Id. at 230 (quoting

IOWA CODE 668A.1 (1997)).

and its application are foreign to Mississippi law and conflict with the requirements imposed by Mississippis statutory limitation on punitive damages.48

VIII. Conclusion
Gross negligence is that course of conduct which, under the particular circumstances, discloses a reckless indifference to consequences without the exertion of any substantial effort to avoid them.49 When considering gross negligence in the context of punitive damages, Mississippi courts consider whether public policy goals are furthered by imposing a monetary penalty.50 Specifically, because gross negligence entails an award of punitive damages, Mississippi courts apply the following two-part inquiry to distinguish between ordinary negligence and gross negligence: 1) whether the actors conduct fits the definition of gross negligence; and 2) whether public policy is furthered by allowing punitive damages.51 The Mississippi Supreme Court recently considered the relationship between a pharmacists legal duty of care and regulations promulgated by the State Board of Pharmacy. In 2002, the court held that the State Boards regulations do not define the legal duty owed by a pharmacist to those for whom the pharmacist fills prescriptions. Because the regulations do not define a pharmacists legal duty of care, the court further held that violating the State Boards regulations does not establish that a pharmacist breached a duty of care; such violation merely provides admissible evidence of negligence.

48

Compare IOWA CODE 668A.1 (1997) (by a preponderance of clear, convincing, and satisfactory evidence, the conduct of the defendant from which the claim arose constituted willful and wanton disregard for the rights or safety of others), with MISS. CODE ANN. 11-1-65(1)(a) (2002 & Supp. 2006) (Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.).
49 50

Dame,

101 So. 2d at 645.

Fowler Butane Gas Co. v. Varner, 141 So. 2d 226, 233-34 (1962) (stating that the award is in the nature of a punishment for wrongdoing and an example, so that others may be deterred from the commission of such wrongs and the public be properly protected).
51

Id.