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Kolozsvari v Doe

Case No. 32A04-1008-CT-525 (In. Ct. App., Feb. 10, 2011)

Christine Kolozsvari (“Christine”) and Ivan Kolozsvari (“Ivan”; collectively, “the Kolozsvaris”) appeal from the trial court’s grant of summary judgment against them and in favor of Kelley Branchfield, R.Ph., (“Branchfield”) and Hook SuperX, LLC (“CVS”). The Kolozsvaris raise one issue for our review, whether the trial court erred when it held that pharmacists have no duty to warn of the side effects of prescribed medications, and therefore determined that Branchfield and CVS were entitled to judgment as a matter of law because they owed no duty either to warn Christine of the side effects of a medication Branchfield filled or to refuse to fill the prescription.

We reverse and remand for further proceedings.

Facts and Procedural History
In conformance with our standard of review, the facts and inferences favorable to the Kolozsvaris, the nonmovants at summary judgment, are as follows. Christine suffers from, among other ailments, ulcerative colitis. In 2006, Christine consulted John Doe, M.D., (“Dr. Doe”)1 a gastroenterologist, for treatment. Pursuant to his treatment plan, Dr. Doe’s office notified Christine that she should undergo a colonoscopy, which was scheduled for September 25, 2007.

On September 18, 2007, Christine visited Dr. Doe’s office for a pre-colonoscopy consultation. To ensure a clear view of the colon, Dr. Doe required Christine to take a laxative that would empty her colon. Because of her prior experience as a patient, Christine knew certain of these medications were difficult for her to take. Working along with Christine to determine the best colonoscopy preparation, Nurse Doe suggested, and Dr. Doe prescribed, OsmoPrep, a sodium phosphate-based laxative available in pill form instead of as a liquid.

Dr. Doe’s office phoned the prescription to the CVS pharmacy in Danville, where Christine routinely took all of her prescriptions and which had a complete record of all such medications. Among these medications was Lisinopril, an ACE inhibitor Christine used at the time to treat her hypertension. CVS’s monograph for OsmoPrep instructs patients to contact a physician if they will use Lisinopril while also taking OsmoPrep, and in 2008 a U.S. Food and Drug Administration “black box” label was put on OsmoPrep regarding the drug’s potential for causing kidney damage as a result of possible interactions with Lisinopril.


Judge(s): Mark Bailey
Jurisdiction: Indiana Court of Appeals
Related Categories: Torts
Trial Court Judge(s)
David Coleman

Court of Appeals Judge(s)
Mark Bailey
Carr Darden
Edward Najam, Jr.

Appellant Lawyer(s) Appellant Law Firm(s)
Matthew Hinkle Coots Henke & Wheeler PC
Elizabeth Van Tassel Coots Henke & Wheeler PC

Appellee Lawyer(s) Appellee Law Firm(s)
Katherine Karres Schultz & Pogue LLP
Peter Pogue Schultz & Pogue LLP



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the same as that of the trial court. we stand in the shoes of the trial court and 3 did not feel that the osmoprep had completelyprepared her for the procedure. she called dr. cvs and branchfield draw our attention to the question of whether osmoprep is contraindicated for patients 6 reversed and remanded. unusual sensations, and expressed concern that these symptoms were related to her use of the risk to christine of renal failure. branchfield again dismissed the notice and filled the the time to treat her hypertension. cvs's monograph2 genuine issues of material fact and the moving party is entitled to judgment as professional judgment leads him to conclude that a patient may be harmed. id. at 518. the including her ongoing use of lisinopril, an ace inhibitor that had been associated with a risk 10 computer system, which provided him information about the rate at which mclaughlin was medication or compounding physician-issued prescriptions. see 1899 ind. acts 159-163. pharmacy in 1899 to license pharmacists engaged in selling any poison-containing 5 dangerous drug refilled at a rate unreasonably faster than that prescribed." id. but the public 4 cease filling prescriptions where the customers are using the drugs much more rapidly than prescribed"). february 10, 2011 gives rise to such duty." id. (quoting neal v. home builders, inc., 232 ind. 160, 111 n.e.2d christine routinely took all of her prescriptions and which had a complete record of all such matter shows that there is no genuine issue as to any material fact and that the moving party facts and procedural history in indiana, the tort of negligence is comprised of three elements: (1) a dutyon the part review panel during the briefing of the case before this court. pursuant to ind. code 34-18-8-7(a)(1), which content to christine.3 1977, p.l. 276, sec. 1, and amended by p.l. 156-1986, sec. 3.). in those situations where a ) among other ailments, ulcerative colitis. in 2006, christine consulted john doe, m.d., ("dr. of this case, our decision today reaches no further.4 told to just keep drinking water. concerns, as expressed in the statutes governing pharmacies and pharmacists, are central to review panel, we refer to the other defendants as dr. doe and nurse doe throughout. suited to disposition upon summary judgment because of the fact-sensitive nature of such us. we therefore remand this matter to the trial court for further proceedings consistent with john doe, m.d., jane doe, r.n., ) is entitled to a judgment as a matter of law." ind. trial rule 56(c). our standard of review christine to determine the best colonoscopy preparation, nurse doe suggested, and dr. doe in the ) coots, henke & wheeler, p.c. peter h. pogue filled or to refuse to fill the prescription. medicine to provide counseling or warnings about medications or to withhold such from customers, and such 3 pharmacists, although they do not of themselves give rise to such a duty. id. at 518 (rejecting waiver is applicable only for a specific offer of counseling and is not valid for waiver of after concluding her phone call with dr. doe's office, christine returned to cvs to evidence, we hold that cvs and branchfield had a duty of care to christine either to warn pharmacist refuses in good faith to fill a prescription based on a professional judgment that the "argument that the pharmacist's duty arises by virtue of this statute alone"). while the christine was diagnosed with kidney failure due to phosphate nephropathy. after schultz & pogue, llp http://www.cvs.com/cvsapp/health/consultation_corner.jsp (last visited january20, 2011) 4 judgment for cvs and branchfield may be sustained on the evidence and arguments before branchfield. part of any duty of care a pharmacist mayowe a patient derives from our legislature's the general assembly declared in 1977 that "the practice of pharmacy" is "a professional september 25, 2007. identify the defendant," when a medical malpractice claim has been filed before the conclusion of a medical indicates that honoring the prescription would be against the patient's best interests or be patient--together with the pharmacist's knowledge of the prescription history, imposed a more and more upon pharmacists and pharmacies--which often have national resources to duty exists, we are presented with no other ground upon which the entry of summary ) office told her that these were not caused by the osmoprep. the colonoscopy was in such cases is well established. n.e.2d 701, 706 (1974). the kolozsvaris here, and cvs and branchfield at summary a monograph is a short document often provided by a pharmacy that lists side effects, possible prescription vs. ) no. 32a04-1008-ct-525 judgment is appropriate onlywhere the designated evidence shows there are no kelley branchfield, r.ph. peritoneal dialysis each night to clear her blood of toxins. this required the permanent someone christine's age using osmoprep, the other alerting her to the risk of kidneydamage pharmacist. i.c. 25-26-13-16(b). cvs from local or regional drug stores to nationwide retail chains. cf. 1899 acts 160-161 2(a). information given in such counseling may include "[s]pecial directions and our holding today. negligence and loss of consortium. the issues before us relate to potential liability of cvs and its employee pharmacist, branchfield. the medications. among these medications was lisinopril, an ace inhibitor christine used at having determined that a legal dangers posed by osmoprep or to decline to fill the prescription. on august 13, 2010, the court of appeals and for osmoprep instructs patients to summary judgment, we carefully scrutinize that determination to ensure that a branchfield; on june 17, 2009, the kolozsvaris amended their complaint, which alleges cox v. n. indiana pub. serv. co., 848 n.e.2d 690, 695-96 (ind. ct. app. 2006) (citations 5 osmoprep. just as in mclaughlin, where the pharmacist knew that mclaughlin's refill of short period of time. in addition, the entire history of christine's prescription medications-- indiana statutes and regulations set forth some of the nature of the dutyof care imposed upon this appeal followed. undergoing hemodialysis for some time, christine began to self-administer at-home the indiana board of pharmacyhas interpreted this statute to require that a pharmacist case summary pharmacists on various health topics and medications, cvs, elizabeth i. van tassel and hook superx, llc: on september 20, 2007, christine purchased the osmoprep, which was filled as infection. she has twice suffered from peritonitis; each time, christine was hospitalized for "we do not perceive that physicians and pharmacists will become adversaries if pharmacists are expected to trial court granted cvs's and branchfield's motion, dismissing the koloszvaris' claims morning on september 26, 2007, christine awoke with her whole body "buzzing," feeling the practice of medicine has become more specialized, and consumers have come to rely the evolution of pharmacy regulation in indiana tracks the history of the evolution of kolozsvaris, the nonmovants at summary judgment, are as follows. christine suffers from, for publication christine of the side effects of osmoprep or to withhold the medication in accordance with would exceed the amount ordinarilyconsidered safe in such a short period of time, increasing after submission of motions, arguments, affidavits, other evidence, and a hearing (if bears on the ultimate resolution of relevant issues. we view the pleadings and 1 placement of a peritoneal catheter and exposes her to the risk of peritonitis, an abdominal determining when such a duty arises. party was not improperly prevented from having his or her day in court. opinion - for publication a local store in lowell, massachusetts, in 1963, to a 7,000-store chain in 2009). in that time, doe")1 omitted). while filling the two prescriptions: one alerting her to the risk of kidneydamage as a result of his prescriptions was unreasonably rapid and this should have alerted the pharmacist to the failure because of christine's age. branchfield dismissed the warning without conveying its in conformance with our standard of review, the facts and inferences favorable to the they owed no duty either to warn christine of the side effects of a medication branchfield filed prescription and over-the-counter medications. see, e.g., health: advice from your cvs indiana code section 25-26-13-16 and pharmacy board rule 1-33-2. 2 kolozsvaris also allege that cvs and branchfield were negligent in filling christine's consumers to email pharmacists questions about medications and to independently check standard of review between the parties, and it is the province of the court to determine whether such a relation (providing "ask the pharmacist" and "drug interaction checker" features permitting christine remained at the hospital from september 26, 2007, to october 10, 2007. clerkof the supreme court, ivan kolozsvari, ) 7 told a pharmacy technician that she had been experiencing tingling running from her fingers "relationship between pharmacist and customer as one that gives rise to a duty [of care]" in apply a de novo standard of review. our review of a summary judgment treatment. the damage to her kidneys requires that christine undergo dialysis for the rest of requires that a "complaint filed in court may not contain any information that would allow a third party to rescheduled for the following day and christine was informed that another prescription for bailey, judge where a trial court enters specific findings and conclusions, they offer laxative that would empty her colon. because of her prior experience as a patient, christine on september 24, 2007, the night before the scheduled procedure, christine took the kolozsvaris raise one issue for our review, whether the trial court erred when it held that injury to the plaintiff resulting from that failure. miller v. griesel, 261 ind. 604, 610-11, 308 attorneys for appellants: attorneys for appellees by law to fill all valid prescriptions unless an appropriate exercise of professional judgment the practice of pharmacy from small, local pharmacies to the growth of national chains like as a result of the amount of osmoprep christine had been prescribed and would use in a appeared on the computer screen with a warning that use of osmoprep posed a risk of renal refilling the medication. id. at 519. the mclaughlin court noted that a pharmacist has the *** court. support their operations--for help in understanding the effects and interactions of various on january 30, 2009, the kolozsvaris filed suit against dr. doe, nurse doe, cvs, and substance abuse issues likelyassociated with this behavior, here, branchfield had information arguing that cvs and branchfield had no duty as a matter of law to warn christine of the should have been known to cvs and branchfield. finally, christine informed a pharmacy "initiat[e] an offer ... to counsel the patient on matters that, in the pharmacist's professional prescribed, osmoprep, a sodium phosphate-based laxative available in pill form instead of as certain circumstances. hooks superx, inc. v. mclaughlin, 642 n.e.2d 514, 517 (ind. 1994). the public." i.c. 25-26-13-1 (added by acts 1977, p.l. 276, sec. 1). to that end, our whether a pharmacist has a duty to warn or withhold medication contrary to the patient's health or safety. i.c. 25-26-13-16(b)(2) & (4) (as added by acts additionally, all facts and reasonable inferences from those facts are construed that gave rise to a duty to exercise professional judgment under the statute. in light of this discussion and decision hendricks regional hospital. prescriptions at cvs. branchfield received two separate warnings from cvs's computers favor of kelley branchfield, r.ph., ("branchfield") and hook superx, llc ("cvs"). the the technician consulted with branchfield, who said that osmoprep did not cause the this argument addresses issues related to the standard of care owed christine and whether that standard of care lisinopril. prescription without notifying christine of the warning's content. during this visit, christine "like if you push an electric lawnmower ... and ... you let go and your hands are vibrating." osmoprep prescription. despite cvs's and branchfield's insistence to the contrary, pharmacists need not engage in the practice of cause no. 32d02-0902-ct-4 knew certain of these medications were difficult for her to take. working along with negligence actions are generally ill- matthew l. hinkle in mclaughlin, the court held that a pharmacist had a duty to withhold from a patient kolozsvaris") appeal from the trial court's grant of summary judgment against them and in 12 actions. rhodes v. wright, 805 n.e.2d 382, 387 (ind. 2004). the question of the existence appeal from the hendricks superior court policy concerns as expressed by the legislature in the statute--preventing pharmacists from u.s. food and drug administration "black box" label was put on osmoprep regarding the a liquid. granted), a trial court must render summaryjudgment "forthwith if the designated evidentiary osmoprep pills per the instructions given to her by nurse doe. by the next day, christine tax court (last visited january 20, 2011) (providing a timeline that documents the growth of cvs from that may be encountered, including their avoidance and the action required if they occur." contact a physician if they will use lisinopril while also taking osmoprep, and in 2008 a we reverse and remand for further proceedings. najam, j., and darden, j., concur. (app. 115.) she gathered her wallet and keys and drove herself to the emergency room at indianapolis, indiana (requiring registered pharmacists to be "the proprietor or manager of a store or pharmacy in failing to warn christine about possibly serious side effects and contraindications associated christine kolozsvari and ) prior decisions of this court and our supreme court have recognized the contractual among the exhibits the kolozsvaris designated in opposition to the motion for summaryjudgment are printed 9 to her elbows, and inquired whether these sensations might be a side-effect of the osmoprep. her life or receive a kidney transplant, and she has been placed on a transplant waiting list. was breached, a matter not argued before the trial court upon summary judgment and not properly before this the honorable david h. coleman, judge 856 iac 1-33-2(a)(3) & (4). such counseling may be waived, but a specific instance of on september 18, 2007, christine visited dr. doe's office for a pre-colonoscopy judgment was granted; the designated evidence largely relates to that question, and our provisions of the indiana code and board of pharmacy regulations do not give rise to a ) her prescription history as known to cvs and branchfield. for the same reasons, the christine kolozsvari ("christine") and ivan kolozsvari ("ivan"; collectively, "the christine. a duty to exercise care "arises as a matter of law out of some relation existing appellants-plaintiffs, ) of a duty of care--a question of law, not fact--was the sole ground upon which summary pharmacists have no duty to warn of the side effects of prescribed medications, and therefore kelley branchfield, r.ph., and ) a gastroenterologist, for treatment. pursuant to his treatment plan, dr. doe's office occupation ... affecting the public health, safety, and welfare" and that it is "a matter of while we address whether cvs and branchfield owed a duty of care to withhold or interests of the patient's health while engaging in the practice of pharmacy." i.c. 25-26- legislature requires that pharmacists "exercise [their] professional judgment in the best aiding or abetting an addiction or habit or otherwise harming the health and safety of a least four years); history, cvs caremark, http://info.cvscaremark.com/our-company/history 8 statutory duty of care, the indiana supreme court has held that specific circumstances may the case before us falls within mclaughlin's interpretation and application of indiana dr. doe's office phoned the prescription to the cvs pharmacy in danville, where 11 of defendant in relation to the plaintiff; (2) the defendant's breach of that duty; and (3) an drug interactions through an external web site to which cvs directs its web site visitors). the patient's health and safety is at risk, the statute affords civil and criminal immunityto the christine mentioned that she had experienced some tingling in her fingers and forearms and insight into the rationale for the trial court's judgment and facilitate appellate during this period of growth in the role of pharmacists and pharmacies in health care, a matter of law. for summary judgment purposes, a fact is "material" if it appellees-defendants. ) determined that branchfield and cvs were entitled to judgment as a matter of law because 13-16(a). since the enactment of these provisions in 1977, pharmacists have been required code section 25-26-13-16. here, christine was prescribed osmoprep and sought to fill her drug's potential for causing kidney damage as a result of possible interactions with judgment below, addressed only whether cvs and branchfield had a duty of care toward technician at the cvs pharmacy while branchfield was working that she had experienced in favor of the nonmoving party. duty upon the pharmacist to withhold refills of the drug. id. (citing i.c. 25-26-13-16). public interest and concern that the practice of pharmacy merit and receive the confidence of obtain her second round of osmoprep. while branchfield was filling the prescription, a 280 (1953)). records from the cvs computer system showing that warnings were displayed to and dismissed by of kidney damage when used along with osmoprep--was maintained byand therefore was or kolozsvaris' claims against dr. doe and his nurse, jane doe, r.n. ("nurse doe"), were before a medical at 518. the pharmacist in mclaughlin learned of the refill rate from the pharmacy's court of appeals of indiana notified christine that she should undergo a colonoscopy, which was scheduled for review, but are not binding upon this court.... when a trial court grants on march 10, 2010, cvs and branchfield filed their motion for summaryjudgment, a narcotic medication that the pharmacist knew the patient had been refilling too quickly. id. the kolozsvaris claim that branchfield and, through her, cvs were negligent in second computer-generated notification alerted her that the prescribed dose of osmoprep warn christine about the potentially significant adverse effects of osmoprep under the facts asked whether these sensations might be related to the osmoprep. someone from dr. doe's prescribed by dr. doe. while branchfield was working to fill the prescription, a notice court recognized that there are many reasons that a patient "might have a prescription for a which physicians' prescriptions are compounded" or to have worked in such a store for at designated materials in the light most favorable to the non-moving party. future counseling offers. 856 iac 1-33-2(d) & (e). give rise to a pharmacist's duty to warn or withhold and that the legislature's policy that night, christine took the second round of osmoprep as directed. early in the statutory authority to refuse to honor a prescription where the pharmacist's exercise of hook superx, llc, ) against them. judgment, are significant to optimizing drug therapy." ind. admin. code tit. 856, r. 1-33- precautions" and "common adverse effects or interactions and therapeutic contraindications on appeal from a grant of summary judgment, our standard of review is consultation. to ensure a clear view of the colon, dr. doe required christine to take a interactions, and general precautions regarding use of a prescribed medication. taking lisinopril, arguing that contraindication means that a patient should never be prescribed a medication. tingling sensation. the kolozsvaris appeal from a grant of summary judgment to cvs and branchfield. motion is limited to those materials designated to the trial court. summary standard of review here dictates the facts as stated above.5 carmel, indiana katherine g. karres osmoprep would be called in to cvs; christine found this surprising, as she expected to be with her use of osmoprep stemming from her age, the amount of osmoprep prescribed, and doe's office to notify him and determine what course of action to take. during this call, actions need not impair the physician-patient relationship. cf. mclaughlin, 642 n.e.2d at 519 (noting that feb 10 2011, 9:22 am regulation of the pharmacy as a profession. the general assembly established the board of 2

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