Reversal: Kroger must face claim for filling script in wrongful death case

August 4, 2016

Kroger must face a claim that its potential negligence in filling a prescription contributed to the death of a woman after she sought treatment for acute bronchitis, the Indiana Court of Appeals ruled Thursday in a reversal.

A doctor and his employer who are unnamed in the court record prescribed Levofloxacin to Sharon K. Clearwaters despite knowing she had a chronic heart condition for which she was taking Amiodarone and Warfarin, for which Levofloxacin is counter-indicated. The drug can cause interactions including causing the heart to beat out of rhythm.

The day the prescription was filled at a Kroger pharmacy in December 2012, Clearwaters went into cardiopulmonary arrest and died after taking the Levoflaxacin. Clearwaters’ estate filed a notice of suit in November 2013 against the health care providers and Kroger.

In August 2014, the doctor and his employer settled with David Shelton, the personal representative of Clearwaters’ estate, and they were later dismissed from the complaint. Kroger amended its answer to assert a non-party defense. Kroger argued it is entitled to a credit or set-off from the health care providers’ settlement. Kroger filed a motion for partial summary judgment that was granted by Marion Superior Judge James B. Osborn.  

This was error, the Court of Appeals ruled on an interlocutory appeal that was accompanied by an amicus brief on behalf of the Indiana Trial Lawyers Association.

“In this case, the (Indiana Department of Insurance) determined that Kroger was not a qualified health care provider under the Medical Malpractice Act,” Judge Cale Bradford wrote for the panel, reversing in David Shelton, as Personal Representative of the Estate of Sharon K. Clearwaters v. Kroger Limited Partnership I, 49A02-1601-CT-75. “Kroger, therefore, was not exempted from the Comparative Fault Act.” As such, “Kroger was not entitled to receive a credit or set-off with relation to Shelton’s settlement.

“We further instruct the trial court that on remand, Kroger may only seek to limit its potential liability through its asserted non-party defense,” the panel concluded.


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