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Woman may pursue negligence claim against pharmacist

March 2, 2015

The Indiana Court of Appeals sidestepped the question of whether a previous decision is valid when determining that a woman who brought a medical malpractice claim against a hospital can pursue a negligence claim against the hospital’s pharmacist. The plaintiff did not present that negligence claim before the medical review panel.

L. Gail Fair, as personal representative of the estate of Suwanna Dickey, sued Dr. Izzy Yazgan, Meridian Services Corp. and Ball Memorial Hospital following the death of Dickey in 2008. Dickey was admitted to the hospital after becoming acutely psychotic and was treated by Yazgan and Meridian Services, who contracted with the hospital. Dickey died several days after being admitted from cardiac arrhythmia related to dehydration, which was possibly related to vomiting or inadequate fluid intake. Dickey became very sick after taking medicine prescribed by Yazgan and eventually suffered respiratory arrest.

Fair presented her claims to a medical review panel, which ruled in favor of defendants. She then sued, and based on a defense raised by Yazgan and her expert’s testimony, she sought to pursue a claim of negligence against the hospital’s pharmacist. Ball Memorial moved for summary judgment, arguing that Fair shouldn’t be able to pursue that claim because she did not name the pharmacist in her complaint before the review panel. The trial court ruled that she could pursue the claim.

The Indiana Trial Lawyers Association filed an amicus brief, arguing that  Indiana Supreme Court precedent allows Fair to bring the claim against the pharmacist and that K.D. v. Chambers, 951 N.E.2d 855, 857 (Ind. Ct. App. 2011), which is to the contrary, should not be followed.

In Ball Memorial Hospital, Inc. v. L. Gail Fair, as Personal Representative of the Estate of Suwanna Dickey, Deceased v. Izzet Yazgan, M.D., and Meridian Services Corporation, 18A02-1405-CT-316, the judges decided it did not need to decide whether K.D. is good law, which ITLA claimed conflicts with the Medical Malpractice Act and Miller by Miller v. Mem’l Hosp. of South Bend Inc., 679 N.E.2d 1329, 1331 (Ind. 1997), because it doesn’t need to rely on that case to decide Fair’s appeal.
    
Citing Miller, the Court of Appeals concluded Fair can pursue her negligence claim against the hospital’s pharmacist in court. The Miller court’s disposition was based on the principles of notice pleading, which do not require that a complaint state all the elements of a cause of action or anything more than the “operative facts involved in litigation,” Judge Cale Bradford wrote. In addition, Fair’s complaint before the review panel included claims that Ball Memorial’s nurse and staff failed to properly administer medications.

The COA concluded that Yazgan and Meridian Services are not precluded from presenting allegations of pharmacist negligence as a defense before the trial court. Also, because Fair has a claim of negligence against the hospital pharmacist, Ball Memorial is not entitled to an order limiting its liability pursuant to I.C. 34-18-14-3(d) at this time.


 

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