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Court of Appeals upholds dismissal of medical malpractice case against pharmacy

Laci Bursley sued PGPA Pharmacy and her doctor after she developed Stephens Johnson Sydrome as a result of drug toxicity from Lamictal.  She alleged that the pharmacy was guilty of negligence in failing to adequately warn her of the danger and symptoms of Syndrome, which ultimately caused her very severe complications and disability.

The Court held that while the pharmacy could be sued, it would only be vicariously liable for its pharmacist's professional negligence if the victim followed the procedures required by Michigan's medical malpractice reforms.  Those statutory reforms have been interpreted by the Michigan Supreme Court to require that the individual employee to have been identified and served with a Notice of Intent to Sue specifically describing his or her malpractice in detail.

The Court held that since Bursley did not serve a notice on the individual pharmacist in this case, she could not allege or pursue a claim against the pharmacy arising out of the pharmacist's alleged errors in judgment.  The Court came to this conclusion despite its "sympathy" for Plaintiff's "convincing argument that she had no way to know the identity of the dispensing pharmacist [since, indeed, even PGPA's president apparently only knows that the pharmacist's initials were 'KSL']" and despite the panel's conclusion that "it was unfair that the trial court permitted [the pharmacy] to have discovery but did not permit plaintiff to have discovery."  Oddly, the court held that Plaintiff's inability to identify the pharmacist was not related to her failure to comply with the malpractice rules' requirement that the employee be served with a Notice of Intent.

In related rulings, the Court noted that since the pharmacy set out to provide a warning about Stevens Johnson Syndrome, it was required to provide a competent warning, however, ultimately it owed no duty to question a properly-written prescription executed by a physician.

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