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Oyler v. Hy-Vee, Inc.

Court of Appeals of Missouri, Western District, First Division

October 24, 2017

CARL OYLER, et al., Appellants,
v.
HY-VEE, INC., Respondent.

         Appeal from the Circuit Court of Buchanan County The Honorable Weldon C. Judah, Judge

          Before Gary D. Witt, P.J., and Alok Ahuja and Edward R. Ardini, Jr., JJ.

          ALOK AHUJA, JUDGE.

         The 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.

         The 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 circumstances damages.

         Factual Background

         On 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.

         Hy-Vee 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.

         Pecora 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 complications.

         Most 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 pharmacies.

         The 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.

         Hy-Vee 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 my mind."

         Hy-Vee 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."

         Dr. 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.

         On 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.

         Ms. 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.

         Ms. 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 aggravating circumstances.

         Heartland 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.

         Hy-Vee 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 ...


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