Pharmacy-Patient Relationship Discussed
Pharmacy is a health-care provider and had a pharmacist-patient relationship, despite absence of direct contact, under statutes, through contractual obligation to assist in treatment, and by petitioner’s allegations of sub-standard care.  In negligence action against health-care provider, statute requires petitioner to file affidavit stating that petitioner has an opinion supporting the action from a “provider licensed . . . in the same profession as the defendant [.]”  Pharmacology and toxicology are not close enough to pharmacy for affidavit to be sufficient.  Statute also requires dismissal on failure to timely file affidavit which a writ of mandamus will compel.
State of Missouri ex rel. Red Cross Pharmacy, Inc. vs. The Honorable Larry D. Harman, Judge of the Circuit Court of Clay County at Liberty

Missouri Court of Appeals, Western District – WD76777

MISSOURI COURT OF APPEALS
WESTERN DISTRICT

STATE OF MISSOURI ex rel. RED CROSS PHARMACY, INC.,
Relator,
v.

THE HONORABLE LARRY D. HARMAN, Judge of the Circuit Court of Clay County at
Liberty,
Respondent.

DOCKET NUMBER WD76777

Date: December 24, 2013

Appeal from:
Clay County Circuit Court
The Honorable Larry D. Harman, Judge

Appellate Judges:
Writ Division: Alok Ahuja, P.J., Victor C. Howard and Cynthia L. Martin, JJ.

Attorneys:
Bradley C. Nielsen, Kansas City, MO for Relator, for appellant.
Eddie G. Dougherty and B.K. Christopher, Kansas City, MO and Dean C. Nichols, St. Louis,
MO, for respondent.

MISSOURI APPELLATE COURT OPINION SUMMARY
COURT OF APPEALS — WESTERN DISTRICT

STATE OF MISSOURI ex rel. RED CROSS PHARMACY, INC.

Relator,
v.

THE HONORABLE LARRY D. HARMAN, Judge of the Circuit Court of Clay
County at Liberty,
Respondent.

WD76777 Clay County

In the underlying action in the circuit court, plaintiff Amy Honeycutt alleges claims
against various persons and entities for personal injuries she suffered as a result of the
administration to her of certain anti-tuberculosis medications. Honeycutt alleges that she
experienced multiple, serious side effects from the medications administered to her, and was
ultimately required to undergo a liver transplant as a result. Honeycutt alleges that the Red Cross
Pharmacy acted negligently in providing the anti-tuberculosis medications to her and to the
health-care providers treating her, without adequate information concerning the proper
administration, and potential side effects, of the medications.
Within 90 days of filing her claim against the Pharmacy, Honeycutt’s counsel filed an
affidavit stating that he had obtained the opinion of a pharmacologist and toxicologist that the
Pharmacy had acted negligently. The Pharmacy moved to dismiss Honeycutt’s claim against it,
arguing that Honeycutt’s health-care affidavit was insufficient to comply with § 538.225, RSMo,
because Honeycutt had not obtained an opinion from someone who was licensed in, and
practiced as, a pharmacist. In response, Honeycutt argued that § 538.225 was not applicable to
her claims against the Pharmacy. She also submitted a supplemental affidavit, stating that she
had obtained the opinion of a registered pharmacist that the Pharmacy had acted negligently.
The Pharmacy moved to strike the supplemental affidavit, arguing that it had not been timely
filed.
The trial court found that Honeycutt’s original health-care affidavit failed to satisfy the
requirements of § 538.225. It also found, however, that any deficiencies in the original affidavit
had been cured by the supplemental affidavit. The Pharmacy filed a petition for writ of
mandamus in this Court, asking that we order the trial court to dismiss Honeycutt’s claim against
it with prejudice. We issued a preliminary writ of mandamus, and ordered full briefing and
argument.

PRELIMINARY WRIT OF MANDAMUS MADE ABSOLUTE

Writ Division holds:

Honeycutt concedes that, if § 538.225 applies to her claims against the Pharmacy, the
trial court was required to dismiss her claims without prejudice, because her initial health-care
affidavit was deficient, and her supplemental affidavit was not timely filed. Honeycutt argues,
however, that § 538.225 is not applicable here, both because the Pharmacy is not a “health care
provider” within the meaning of § 538.205(4), RSMo, and because the Pharmacy was not in a
health-care provider/patient relationship with her, because she did not select the Pharmacy to
supply her anti-tuberculosis medications, and because she had no direct contact with the
pharmacy.
We reject both contentions. First, although a “pharmacy” is not separately identified as a
“health care provider” in § 538.205(4), a “pharmacist” is identified, and the statute also
comprehends within its definition “any other person or entity that provides health care services
under the authority of a license or certificate.” This “catch-all” language is broad enough to
include the Pharmacy.
Second, although the Pharmacy may not have been selected by Honeycutt, or had any
direct contact with her, prior cases have recognized that a provider/patient relationship where the
provider is contractually obligated to provide assistance in the patient’s diagnosis or treatment,
and does so. That is the case here – the Pharmacy had a contract to provide anti-tuberculosis
medications to fill prescriptions written at facilities like the one at which Honeycutt was treated,
and it filled her prescription pursuant to its contractual relationship. The Pharmacy’s role in this
case appears to be analogous to that frequently filled by a radiologist or pathologist, who may
likewise have little or no direct contact with a patient, but who instead interacts with other
health-care professionals in providing services essential to the patient’s successful treatment.
Before: Writ Division: Alok Ahuja, P.J., Victor C. Howard and Cynthia L. Martin, JJ.

Opinion by: Alok Ahuja, Judge December 24, 2013
THIS SUMMARY IS UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

 

MISSOURI COURT OF APPEALS
WESTERN DISTRICT

STATE OF MISSOURI ex rel. RED CROSS PHARMACY, INC.,
Relator,
v.

THE HONORABLE LARRY D. HARMAN, Judge of the Circuit Court of Clay County at
Liberty,
Respondent.

DOCKET NUMBER WD76777

Date: December 24, 2013

Appeal from:
Clay County Circuit Court
The Honorable Larry D. Harman, Judge

Appellate Judges:
Writ Division: Alok Ahuja, P.J., Victor C. Howard and Cynthia L. Martin, JJ.

Attorneys:
Bradley C. Nielsen, Kansas City, MO for Relator, for appellant.
Eddie G. Dougherty and B.K. Christopher, Kansas City, MO and Dean C. Nichols, St. Louis,
MO, for respondent.

MISSOURI APPELLATE COURT OPINION SUMMARY
COURT OF APPEALS — WESTERN DISTRICT

STATE OF MISSOURI ex rel. RED CROSS PHARMACY, INC.

Relator,
v.

THE HONORABLE LARRY D. HARMAN, Judge of the Circuit Court of Clay
County at Liberty,
Respondent.

WD76777 Clay County

In the underlying action in the circuit court, plaintiff Amy Honeycutt alleges claims
against various persons and entities for personal injuries she suffered as a result of the
administration to her of certain anti-tuberculosis medications. Honeycutt alleges that she
experienced multiple, serious side effects from the medications administered to her, and was
ultimately required to undergo a liver transplant as a result. Honeycutt alleges that the Red Cross
Pharmacy acted negligently in providing the anti-tuberculosis medications to her and to the
health-care providers treating her, without adequate information concerning the proper
administration, and potential side effects, of the medications.
Within 90 days of filing her claim against the Pharmacy, Honeycutt’s counsel filed an
affidavit stating that he had obtained the opinion of a pharmacologist and toxicologist that the
Pharmacy had acted negligently. The Pharmacy moved to dismiss Honeycutt’s claim against it,
arguing that Honeycutt’s health-care affidavit was insufficient to comply with § 538.225, RSMo,
because Honeycutt had not obtained an opinion from someone who was licensed in, and
practiced as, a pharmacist. In response, Honeycutt argued that § 538.225 was not applicable to
her claims against the Pharmacy. She also submitted a supplemental affidavit, stating that she
had obtained the opinion of a registered pharmacist that the Pharmacy had acted negligently.
The Pharmacy moved to strike the supplemental affidavit, arguing that it had not been timely
filed.
The trial court found that Honeycutt’s original health-care affidavit failed to satisfy the
requirements of § 538.225. It also found, however, that any deficiencies in the original affidavit
had been cured by the supplemental affidavit. The Pharmacy filed a petition for writ of
mandamus in this Court, asking that we order the trial court to dismiss Honeycutt’s claim against
it with prejudice. We issued a preliminary writ of mandamus, and ordered full briefing and
argument.

PRELIMINARY WRIT OF MANDAMUS MADE ABSOLUTE

Writ Division holds:

Honeycutt concedes that, if § 538.225 applies to her claims against the Pharmacy, the
trial court was required to dismiss her claims without prejudice, because her initial health-care
affidavit was deficient, and her supplemental affidavit was not timely filed. Honeycutt argues,
however, that § 538.225 is not applicable here, both because the Pharmacy is not a “health care
provider” within the meaning of § 538.205(4), RSMo, and because the Pharmacy was not in a
health-care provider/patient relationship with her, because she did not select the Pharmacy to
supply her anti-tuberculosis medications, and because she had no direct contact with the
pharmacy.
We reject both contentions. First, although a “pharmacy” is not separately identified as a
“health care provider” in § 538.205(4), a “pharmacist” is identified, and the statute also
comprehends within its definition “any other person or entity that provides health care services
under the authority of a license or certificate.” This “catch-all” language is broad enough to
include the Pharmacy.
Second, although the Pharmacy may not have been selected by Honeycutt, or had any
direct contact with her, prior cases have recognized that a provider/patient relationship where the
provider is contractually obligated to provide assistance in the patient’s diagnosis or treatment,
and does so. That is the case here – the Pharmacy had a contract to provide anti-tuberculosis
medications to fill prescriptions written at facilities like the one at which Honeycutt was treated,
and it filled her prescription pursuant to its contractual relationship. The Pharmacy’s role in this
case appears to be analogous to that frequently filled by a radiologist or pathologist, who may
likewise have little or no direct contact with a patient, but who instead interacts with other
health-care professionals in providing services essential to the patient’s successful treatment.
Before: Writ Division: Alok Ahuja, P.J., Victor C. Howard and Cynthia L. Martin, JJ.

Opinion by: Alok Ahuja, Judge December 24, 2013
THIS SUMMARY IS UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.