Cases of Note

Jerry Nelms V. Walgreen, C.A. No. 02A01-9805-CV-00137; COURT OF APPEALS OF TENNESSEE, WESTERN SECTION, AT JACKSON; 1999 Tenn. App. LEXIS 437

July 7th, 1999

PROCEDURAL POSTURE: Plaintiff, as next of kin and executor of the estate of his deceased wife, filed lawsuit against defendant pharmacy for the negligent filling of his wife's prescription. Plaintiff appealed a decision of the Circuit Court of Shelby County at Memphis (Tennessee), which awarded plaintiff compensatory damages but denied his request for punitive damages.

OVERVIEW: Plaintiff filed lawsuit against defendant pharmacy for the negligent filling of his wife's prescription. On appeal from a decision of the lower court, which awarded plaintiff compensatory damages on the basis of defendant's ordinary negligence but denied his request for punitive damages, the court concluded that plaintiff failed to present clear and convincing evidence that defendant's representatives engaged in fraudulent conduct in connection with the misfilling of wife's prescription. Further, the court concluded that plaintiff failed to present clear and convincing evidence that defendant's representatives engaged in reckless conduct in connection with the misfilling of his wife's prescription. The record contained no evidence that defendant's pharmacy technicians ever bypassed defendant's verification procedures by dispensing medications without a pharmacist's approval. Also, the evidence failed to show that a scheduling violation constituted a gross deviation from the required standard of care.

OUTCOME: The court affirmed decision of lower court, which awarded plaintiff compensatory damages but denied request for punitive damages, on the grounds that, although the evidence supported a claim of ordinary negligence against defendant for misfilling a prescription, the evidence did not support a finding that pharmacy's representatives engaged in reckless conduct such as to constitute a gross deviation from the required standard of care.

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