Court of Appeals of Missouri, Western District, First Division
from the Circuit Court of Buchanan County The Honorable
Weldon C. Judah, Judge
Gary D. Witt, P.J., and Alok Ahuja and Edward R. Ardini, Jr.,
survivors of Joyce Oyler (collectively the
"Oylers") brought a wrongful death petition against
Hy-Vee, Inc. in the Circuit Court of Buchanan County. The
petition alleged that the Hy-Vee pharmacy in St. Joseph
negligently filled a prescription for Ms. Oyler with the
wrong medication, causing her death. In addition to seeking
compensatory damages, the Oylers' petition also sought
additional damages for aggravating circumstances. During the
trial of the Oylers' claims, the circuit court granted
Hy-Vee's motion for a directed verdict on the issue of
aggravating circumstances damages, and refused to submit the
issue to the jury. The jury returned a verdict in favor of
the Oylers on their claim for compensatory damages.
Oylers appeal. They argue that the circuit court erroneously
granted Hy-Vee a directed verdict concerning the availability
of aggravating circumstances damages. We agree. We reverse
the judgment of the circuit court, and remand the case for
further proceedings on the Oylers' claim for aggravating
October 4, 2013, Joyce Oyler was hospitalized at the
Heartland Regional Medical Center in St. Joseph as a result
of fluid buildup in her lungs. When Ms. Oyler was released
from the hospital on October 9, Nurse Caitlin Erdman phoned
in a prescription order for multiple medications to the
Hy-Vee pharmacy in St. Joseph. The order included a
prescription for a daily diuretic, metolazone.
pharmacy technician Nina Pecora took the phone-in
prescription order for Ms. Oyler. Pecora had no formal
pharmacy training or education before becoming a pharmacy
technician. She had worked in the Hy-Vee floral department
before moving to the pharmacy.
made numerous errors transcribing Ms. Oyler's
prescriptions. She made spelling errors on several of the
medication orders, misspelled Nurse Erdman's name, and
recorded an incorrect birth date for Ms. Oyler. Pecora also
made a mistake on the dosage for an albuterol inhaler
prescribed to Ms. Oyler. The dosage Pecora listed was ten
times the correct dosage, and potentially could have caused
heart arrhythmias and palpitations along with other
significantly, Pecora recorded an order for a daily dose of
methotrexate, rather than the metolazone which Ms. Oyler had
been prescribed. Methotrexate is primarily used as an
anti-cancer chemotherapy drug, as well as to treat certain
auto-immune disorders including rheumatoid arthritis. When
taken on a daily basis for more than a week, the drug can
have irreversible and lethal side effects; symptoms do not
manifest until the damage is untreatable. Methotrexate is one
of a small number of drugs that is classified as a "high
alert" medication by the Institute for Safe Medication
Practices ("ISMP"). This classification is reserved
for drugs which have potentially severe consequences if
misused, and which should be handled with special care by
Oylers' retained pharmacy expert, Dr. William Fassett,
testified that technicians at the Hy-Vee pharmacy would
"look in the computer to find drugs" when taking
phone orders, "if they didn't know what the drugs
were." Dr. Fassett testified that the computer system
would provide the technician with a "drop-down
menu" listing various drugs, based on the technician
typing the first few letters of the drug's name. Dr.
Fassett testified that, "if a person was looking for
something that started with the three letters M-e-t and had a
2 ½ milligram strength, it's a very common mistake
to pick the first one that meets those two criteria and pick
the Methotrexate, " rather than metolazone.
pharmacist Kyle Long approved the methotrexate prescription
for Ms. Oyler. Long testified that methotrexate can be safely
administered at a once-weekly, or potentially twice-weekly,
dosage. He acknowledged, however, that a daily dosage of
methotrexate can be deadly. Long testified that he reviewed
Ms. Oyler's prescription before it was filled; he
testified, however, that "for some reason [I] didn't
recognize the weekly versus the daily. It didn't click in
utilized an automated system for filling prescriptions called
EnterpriseRx. Long said that the program included a safeguard
designed to alert pharmacists to dangerously high dosages of
drugs like methotrexate. Long testified, however, that the
system did not flag Ms. Oyler's methotrexate
prescription, because the total number of methotrexate
tablets prescribed to Ms. Oyler, if taken on a weekly basis,
"would not be a high dose."
Fassett testified at trial that Hy-Vee lacked a sufficient
safety system for "high alert" medications like
methotrexate. Dr. Fassett testified that the ISMP has
developed reasonable solutions to prevent prescription
medication errors, which are "readily implemented"
and widely relied on by prudent pharmacies. Dr. Fassett also
testified that "[i]t has been known since at least 2002
. . . that the way to prevent Mrs. Oyler from ever getting
Methotrexate with a label saying 'Take one tablet
daily' is to put a hard stop in the computer that
prevents anybody from using it to print a label for
methotrexate that says 'Take one tablet daily.'"
Dr. Fassett testified that such a programmed "hard
stop" was "done widely around the country, "
and that the ISMP had published research indicating that such
a "hard stop" would be 100% effective in preventing
medication errors like the one which occurred here.
October 9, after Ms. Oyler's prescriptions had been
filled, her husband picked up the prescriptions at the
pharmacy. The employee at the counter asked Mr. Oyler if he
had any questions about Ms. Oyler's medications. When he
responded that he did not, the Hy-Vee pharmacy employee
provided no further counseling or warning about any of the
medications. Hy-Vee's Pharmacy Quality Commitment Manual
("PQC Manual") "strongly recommend[s]"
that all patients with new prescriptions receive patient
counseling, even if not required by the laws of the state in
which the pharmacy operates. Dr. Fassett testified that such
counseling should be provided, at the least, when it comes to
"high alert" drugs like methotrexate.
Oyler took the methotrexate daily as instructed by the label,
and died less than a month later on October 30, 2013, as a
result of side effects of the medication.
Oyler's husband and two adult sons filed a wrongful death
petition in the Circuit Court of Buchanan County, naming
Hy-Vee and Heartland Regional Medical Center as defendants.
The petition included a claim for additional damages due to
was dismissed from the lawsuit as the result of a settlement.
The case proceeded to a jury trial solely against Hy-Vee.
Prior to trial, Hy-Vee moved for partial summary judgment on
the issue of aggravating circumstances damages, which was
denied. Hy-Vee's motion for directed verdict concerning
aggravating circumstances damages at the close of
plaintiff's evidence was also denied. When Hy-Vee renewed
the motion at the close of all of the evidence, however, the
circuit court granted the motion, and the issue of
aggravating circumstances was not submitted to the jury.
admitted negligence at trial. The jury returned a verdict in
the Oylers' favor for $2 million. The trial court reduced
the award to $125, 000 as a result of the damages caps
contained in § 538.210.2, RSMo ...