Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 11, 2008
JUDITH KUZNAR and JOSEPH KUZNAR,
her husband,
Plaintiffs-Appellees,
v No. 132203
RAKSHA CORPORATION, doing business
as CROWN PHARMACY, and VALERIE
RANDALL, jointly and severally,
Defendants-Appellants.
BEFORE THE ENTIRE BENCH
KELLY, J.
Plaintiffs Judith and Joseph Kuznar sued Raksha Corporation, doing
business as Crown Pharmacy (hereafter Crown Pharmacy), and its nonpharmacist
employee Valerie Randall for negligence in refilling a prescription that resulted in
injury to Judith. The issue is whether the two-year statutory period of limitations
for medical malpractice1 or the three-year period for ordinary negligence2 applies
to plaintiffs’ claims.
We affirm the Court of Appeals conclusion that a pharmacy is not a
licensed health facility or agency. In addition, we conclude that a pharmacy is not
a licensed health-care professional. We hold, therefore, that a pharmacy cannot be
directly liable for medical malpractice. But it can be directly liable for ordinary
negligence for operating without having a licensed pharmacist on site and for
allowing a nonpharmacist to dispense medications. Hence, plaintiffs’ claims of
direct negligence on the part of the pharmacy are timely under the three-year
period of limitations for ordinary negligence.
Because the pharmacy is not a licensed health facility or agency, the
defendant nonpharmacist employee was not an employee of such a facility or
agency. Neither was she a licensed health-care professional. As a consequence,
plaintiffs’ claims alleging negligence by the nonpharmacist employee and
vicarious liability for that negligence by the pharmacy may also proceed under the
three-year statute of limitations for ordinary negligence.
We affirm the judgment of the Court of Appeals and remand the case to the
circuit court for proceedings not inconsistent with this opinion.
1
MCL 600.5805(6).
2
MCL 600.5805(10).
2
I. FACTS AND PROCEDURAL HISTORY
On November 11, 2000, Joseph Kuznar took a prescription for Mirapex,
0.125 mg, to be refilled at Crown Pharmacy. His wife, Judith, was taking the
medication on her physician’s orders to control the symptoms of restless leg
syndrome. Defendant Valerie Randall refilled the prescription with 1 mg tablets
of Mirapex, each tablet thus containing eight times the prescribed dosage. Randall
was a Crown Pharmacy employee who was not a licensed pharmacist and was not
acting under the supervision of a pharmacist.3
Judith Kuznar took one of the 1 mg Mirapex tablets in the afternoon and
two in the early evening of November 13, 2000. She became dizzy, agitated, and
nauseated in the evening and lost consciousness during the night. At the Botsford
General Hospital emergency room, her symptoms were determined to be an
adverse reaction to the excessive dosage of Mirapex.
On October 7, 2003, the Kuznars filed a negligence lawsuit against both
Crown Pharmacy and Randall.4 In count 17 of the complaint, plaintiffs alleged
that Crown Pharmacy owed a duty to exercise reasonable care through its agents
and employees when dispensing medications. In count 18, plaintiffs alleged that
Crown Pharmacy owed a duty to avoid foreseeable injury when dispensing
3
These are plaintiffs’ allegations in the complaint. We accept them as true
for purposes of defendants’ motion for summary disposition under MCR
2.116(C)(7) and (8). Defendants characterize Randall as a pharmacy technician.
4
Joseph Kuznar’s claims are derivative.
3
medications. In count 19, plaintiffs alleged that the pharmacy breached these
duties by:
a. Failing to dispense the appropriate medication dosage and
refilling a prescription instead with eight times the prescribed
dosage.
b. Failing to timely recognize the error made in dispensing
medications.
c. Allowing persons other than a licensed pharmacist to refill
prescriptions.
d. Failing to have a licensed pharmacist available on site to
oversee, supervise and control the actions of persons not pharmacists
who refilled prescription[s].
In counts 22 to 24, plaintiffs alleged that Randall had a duty not to dispense
medication if she was not a licensed pharmacist. Alternatively, plaintiffs alleged,
she had a duty “to adhere to a standard of care to which she is held to avoid
foreseeable injury in dispensing medications.” In count 25, plaintiffs alleged that
Randall breached these duties by:
a. Dispensing medication which she was not qualified to
dispense as she was not a licensed pharmacist.
b. Failing to dispense the appropriate medication dosage and
refilling a prescription instead with eight times the prescribed
dosage.
c. Failing to timely recognize the error made in dispensing
medications.
d. Failing to consult with a licensed pharmacist before
dispensing medications.
On August 9, 2004, defendants moved for summary disposition under
MCR 2.116(C)(7) and (8). They contended that, because Randall was employed
4
at a licensed health facility or agency, the complaint sounded in medical
malpractice rather than in ordinary negligence. Defendants argued that the
complaint failed to state a claim for ordinary negligence and was barred by the
two-year statute of limitations for medical malpractice. The circuit court denied
the motion without explanation.
The Court of Appeals affirmed the circuit court’s denial of defendants’
motion for summary disposition.5 It pointed out that, under MCL 600.5838a(1), a
medical malpractice claim can be brought against a “licensed health facility or
agency” as defined in article 17 of the Public Health Code.6 Because the licensure
requirement applicable to pharmacies appears in article 15 of the code,7 and not in
article 17, the Court of Appeals concluded that a pharmacy is not a “licensed
health facility or agency” subject to medical malpractice claims.
The Court of Appeals noted that pharmacists are licensed health-care
professionals subject to medical malpractice claims under MCL 600.5838a(1)(b).
However, Randall was not a licensed pharmacist, and neither was Crown
Pharmacy. The Court noted that MCL 600.5838a(1) contemplates that the
negligent acts of unlicensed agents or employees of licensed health facilities or
agencies may be subject to medical malpractice claims. But because a pharmacy
5
Kuznar v Raksha Corp, 272 Mich App 130; 724 NW2d 493 (2006).
6
MCL 333.20101 et seq.
7
MCL 333.16101 et seq.
5
is not a “licensed health facility or agency,” the Court opined, no medical
malpractice had occurred in this case. The Court of Appeals concluded that
plaintiffs’ complaint was timely under the three-year limitations period for
ordinary negligence.8
II. STANDARD OF REVIEW
Defendants sought leave to appeal in this Court. We review decisions on
motions for summary disposition de novo.9 Such motions are properly granted
under MCR 2.116(C)(7) when a statute of limitations bars a claim. In reviewing
whether a motion under MCR 2.116(C)(7) was properly decided, we consider all
documentary evidence and accept the complaint as factually accurate unless
affidavits or other appropriate documents specifically contradict it.10
Summary disposition is proper under MCR 2.116(C)(8) if the nonmoving
party “has failed to state a claim on which relief can be granted.” Such claims
must be “‘so clearly unenforceable as a matter of law that no factual development
could possibly justify recovery.’”11 In reviewing the outcome of a motion under
8
MCL 600.5805(10).
9
See Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 419; 684
NW2d 864 (2004).
10
Id. We note that defendants based their motion for summary disposition
exclusively on plaintiffs’ complaint.
11
Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999) (citation
omitted).
6
MCR 2.116(C)(8), we consider the pleadings alone.12 We accept the factual
allegations in the complaint as true and construe them in a light most favorable to
the nonmoving party.13
We also review questions of statutory interpretation de novo.14 Our main
goal in doing so is to give effect to the intent of the Legislature. When a statute
specifically defines a given term, that definition alone controls.15 The meaning
accorded to undefined terms is determined in part by their placement in the statute
and their purpose in the statutory scheme.16
III. ANALYSIS
A. THE BRYANT REQUIREMENTS FOR MEDICAL MALPRACTICE
In Bryant, this Court held that, to be subject to the requirements for
asserting medical malpractice, a claim must allege an action that (1) occurred
within the course of a professional relationship and (2) poses questions of medical
judgment outside the realm of common knowledge and experience.17
A professional relationship exists if a person or an entity capable of
committing medical malpractice was subject to a contractual duty to render
12
Id.
13
Id.
14
Haynes v Neshewat, 477 Mich 29, 34; 729 NW2d 488 (2007).
15
Id. at 35.
16
Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119
(1999).
17
Bryant, 471 Mich at 422.
7
professional health-care services to the plaintiff.18 Under the common law, only
physicians and surgeons were potentially liable for medical malpractice. But in
MCL 600.5838a(1), the Legislature expanded the scope of those who could be
liable for medical malpractice.19 It provided for medical malpractice claims to be
brought against “a person or entity who is or who holds himself or herself out to
be a licensed health care professional, licensed health facility or agency, or an
employee or agent of a licensed health facility or agency . . . .”20
The primary issue in this case is whether the pharmacy technician and the
pharmacy are covered by MCL 600.5838a(1). We conclude that they are not.
Because the professional relationship test is not satisfied, we need not consider
whether the complaint poses questions of medical judgment that would require
expert testimony.21
B. A LICENSED HEALTH FACILITY OR AGENCY
The Court of Appeals correctly applied the relevant statutes in determining
that licensed health facilities and agencies are those licensed under article 17 of
the Public Health Code.22 Article 17, entitled “Facilities and Agencies,” provides
18
Id.
19
Id. at 420 n 8.
20
MCL 600.5838a(1).
21
Bryant, 471 Mich at 423.
22
MCL 600.5838a(1)(a).
8
its own definition of what is a health facility or agency in the form of a list. The
list does not include pharmacies.23 All the entities listed do more than just
dispense medication. They provide in- or out-patient or residential or emergency
medical care or treatment. MCL 333.20115(1) allows the promulgation of
administrative rules to “further define” this list. Neither party has identified any
administrative expansion of the list.
Under the statutory definition, a pharmacy is not a licensed health facility
or agency and cannot be directly liable for medical malpractice in that capacity.
23
MCL 333.20106(1) provides that “health facility or agency” means
(a) An ambulance operation, aircraft transport operation,
nontransport prehospital life support operation, or medical first
response service.
(b) A clinical laboratory.
(c) A county medical care facility.
(d) A freestanding surgical outpatient facility.
(e) A health maintenance organization.
(f) A home for the aged.
(g) A hospital.
(h) A nursing home.
(i) A hospice.
(j) A hospice residence.
(k) A facility or agency listed in subdivisions (a) to (h)
located in a university, college, or other educational institution.
9
Nor can its agents and employees be liable for medical malpractice as agents or
employees of a licensed health facility or agency. The Court of Appeals correctly
held that Randall and Crown Pharmacy cannot be liable for medial malpractice
under this rationale.
C. A LICENSED HEALTH-CARE PROFESSIONAL
Defendants and the Michigan Pharmacists Association urge us to hold that
a pharmacy is a licensed health-care professional. We decline to do so.
A licensed health-care professional is “an individual licensed or registered
under article 15 of the public health code . . . and engaged in the practice of his or
her health profession in a . . . business entity.”24 The flaw in defendants’
proposition is that the Public Health Code defines “individual” to mean “a natural
person.”25 Article 15 defines a “pharmacist” as “an individual licensed under this
article to engage in the practice of pharmacy.”26 However, it does not define a
pharmacy as an individual or a natural person.
Instead, “pharmacy” is defined as “a building or a part of a building in
which the practice of pharmacy is conducted.”27 MCL 333.17711(1) provides that
“a person shall not engage in the practice of pharmacy unless licensed or
otherwise authorized by this article.” The Public Health Code defines “person” in
24
MCL 600.5838a(1)(b).
25
MCL 333.1105(1).
26
MCL 333.17707(2).
27
MCL 333.17707(4).
10
relevant part as “an individual, partnership, cooperative, association, private
corporation, personal representative, receiver, trustee, assignee, or other legal
entity.”28 Although a business entity can operate a licensed pharmacy, there is no
requirement that a business entity operating as a pharmacy must consist solely of
licensed health-care professionals.
Rather, the standards for the operation of a pharmacy provide:
(1) A pharmacy shall not be operated unless licensed by this
part.
(2) A pharmacy open for business shall be under the personal
charge of a pharmacist.[29] A pharmacist shall not simultaneously
have personal charge of more than 1 pharmacy. The person to
whom a pharmacy license is issued and the pharmacists on duty are
responsible for compliance with federal and state laws regulating the
distribution of drugs and the practice of pharmacy. Pharmacy
services shall be conducted under the control and personal charge of
a pharmacist.
(3) A penalty for violation of this part does not affect the
pharmacy license of other than the place of business where the
violation occurred.[30]
These standards make clear that a license to operate a pharmacy can be issued to a
nonpharmacist. But the holder of the pharmacy license cannot open a pharmacy
for business unless a licensed pharmacist is physically present on site. Because a
pharmacy may be operated by a nonpharmacist, a pharmacy and a pharmacist are
28
MCL 333.1106(2).
29
“Personal charge” means the immediate physical presence of a
pharmacist. MCL 333.17707(1).
30
MCL 333.17741.
11
not the same thing. Whereas a pharmacist is a licensed health care professional, a
pharmacy is not.31
Since Crown Pharmacy was not a licensed health-care professional, it could
not have had a professional relationship with plaintiffs. Because plaintiffs’ direct
claim against the pharmacy fails the first prong of Bryant’s two-pronged test, it
cannot sound in medical malpractice.
In count 19(c) and (d) of the complaint, plaintiffs alleged that Crown
Pharmacy allowed nonpharmacists to refill prescriptions. They asserted that
Crown did not have a licensed pharmacist on site to oversee, supervise, and
control the activities of nonpharmacists. Plaintiffs essentially alleged that the
holder of the pharmacy license in this case operated the pharmacy in violation of
MCL 333.17741.32 These are allegations of direct liability on the part of Crown
31
Defendants rely on two Court of Appeals cases for their claim that a
pharmacy is a licensed health-care professional. See Becker v Meyer Rexall Drug
Co, 141 Mich App 481; 367 NW2d 424 (1985); Simmons v Apex Drug Stores, Inc,
201 Mich App 250; 506 NW2d 562 (1993). In each case, a pharmacy was sued
when a pharmacist incorrectly filled a prescription. Neither Becker nor Simmons
specifically analyzed the distinction between a claim against a pharmacy and a
claim against a pharmacist.
32
“The fact that a person has violated a safety statute may be admitted as
evidence bearing on the question of negligence.” Klanseck v Anderson Sales &
Service, Inc, 426 Mich 78, 86; 393 NW2d 356 (1986); cf. Orzel v Scott Drug Co,
449 Mich 550; 537 NW2d 208 (1995) (holding that a drug addict was not entitled
to a recovery on the basis of the pharmacists’ alleged violation of the controlled-
substance provisions of the Public Health Code because these provisions are not
meant to protect persons who fraudulently obtain drugs).
12
Pharmacy.33 Because the pharmacy itself is not a licensed health-care
professional, its direct liability for violations of the statute lies in ordinary
negligence. The claims in count 19(c) and (d) of the complaint are subject to the
three-year statutory period of limitations for ordinary negligence and are not
barred by the expiration of it.
The remaining allegations in plaintiffs’ complaint concern Randall’s direct
liability for her own negligence in refilling the prescription and Crown
Pharmacy’s vicarious liability for the negligence of its employee.34 Plaintiffs
alleged that Randall was not a licensed pharmacist, and defendants have presented
no documentary evidence to disprove this allegation.35
On the basis of the allegations in plaintiffs’ complaint, Randall cannot be
liable in medical malpractice. Rather, she is directly liable for her own ordinary
33
Plaintiffs have not identified any officers or agents of Raksha
Corporation responsible for the alleged violation of its statutory duty to operate
the pharmacy only under the supervision of a pharmacist. However, because a
corporation is a legal person, it is sufficient for the purposes of the complaint to
allege its actions or failures as a legal person. See Theophelis v Lansing Gen
Hosp, 430 Mich 473, 478; 424 NW2d 478 (1988), citing Jones v Martz & Meek
Constr Co, Inc, 362 Mich 451, 455; 107 NW2d 802 (1961).
34
See Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 294-295; 731 NW2d
29 (2007) (“Vicarious liability . . . rests on the imputation of the negligence of an
agent to a principal. . . . [T]o succeed on a vicarious liability claim, a plaintiff need
only prove that an agent has acted negligently.”).
35
For the first time in this Court, defendants argued that, by virtue of
refilling the prescription, Randall held herself out as a licensed health-care
professional, as defined in MCL 600.5838a(1). We decline to consider this
argument because defendants did not make it in the lower courts.
13
negligence, and Crown Pharmacy is vicariously liable for the ordinary negligence
of its employee.
IV. CONCLUSION
A pharmacy is neither a licensed health facility or agency nor a licensed
health-care professional and cannot be directly liable for medical malpractice.
Hence, under the law, Crown Pharmacy was incapable of committing medical
malpractice.
Plaintiffs alleged that the prescription was refilled by a nonpharmacist
employee of Crown Pharmacy without the supervision of a pharmacist.
Defendants have presented no evidence to the contrary. A nonpharmacist
employee of a licensed pharmacy is neither a licensed health-care professional nor
an employee or agent of a licensed health facility or agency.
Accordingly, plaintiffs’ claims of direct liability against Randall and Crown
Pharmacy and their claims for vicarious liability against Crown Pharmacy sound
in ordinary negligence. Because plaintiffs have stated valid claims of ordinary
negligence, the trial court properly denied defendants’ motion for summary
disposition under MCR 2.116(C)(8). The claims are not barred by the applicable
three-year statute of limitations, and so the court also properly denied defendants’
motion for summary disposition under MCR 2.116(C)(7).
Accordingly, we affirm the judgment of the Court of Appeals and remand
the case to the Wayne Circuit Court for further proceedings.
14
Marilyn Kelly
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
15