Mableton Parkway CVS, Inc. v. Salter

Citations: 273 Ga. App. 477; 615 S.E.2d 558; 2005 Fulton County D. Rep. 1712; 2005 Ga. App. LEXIS 542Docket: A05A0682

Court: Court of Appeals of Georgia; May 27, 2005; Georgia; State Appellate Court

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The court granted CVS's interlocutory appeal regarding the trial court's denial of summary judgment in a case initiated by Frances Salter, who claimed CVS incorrectly filled her prescription twice. Salter asserted eight theories of recovery, including professional negligence, fraud, and violations of the Fair Business Practices Act. The trial court found genuine issues of material fact in all claims and denied CVS's motion for summary judgment. CVS appealed the denial specifically regarding claims of fraud, punitive damages, and intentional infliction of emotional distress.

The appellate court affirmed the trial court's denial of summary judgment for Salter's remaining claims but reversed the requirement for CVS to disclose settlement amounts from other cases, deeming that information irrelevant. The court emphasized that during summary judgment, evidence must be viewed in favor of the nonmoving party and that genuine issues of material fact cannot be resolved at this stage. Salter had been prescribed Lotrel for high blood pressure but received Toprol instead, leading to her feeling ill after taking the incorrect medication. The court's review process involved a de novo examination of the law and evidence.

Salter sought emergency treatment for her symptoms, which remained unexplained after tests. Her physician prescribed pain medication and released her. Upon discovering she was taking Toprol instead of Lotrel, Salter informed her doctor, who was alarmed. CVS acknowledged the pharmacist's mistake but denied that the incorrect medication caused any injury, asserting it did not act fraudulently or intentionally inflict emotional harm, nor is it liable for punitive damages. CVS challenged the trial court's findings, arguing that the court improperly weighed evidence in denying its summary judgment motion. The court's role should be to submit conflicting evidence to a jury. CVS disputed five findings, particularly that the incorrect medication caused Salter's injuries. While Salter's primary doctor linked her symptoms to the substitution, a cardiologist noted that such a substitution had not typically caused severe symptoms. Proximate cause, a blend of law and fact, is generally determined by a jury unless the facts are undisputed. CVS argued the trial court erred in asserting intentional conduct, as evidence indicated the pharmacy's practices were not abnormal, and the expert could not confirm excessive workloads led to errors. Despite CVS admitting to the error, the trial court's conclusion about intentionality was contested due to conflicting evidence.

CVS argues that the trial court incorrectly determined the pharmacist demonstrated indifference by stating Toprol was a substitute for Lotrel without verification. CVS asserts that the evidence does not establish that employees worked under conditions leading to increased errors, noting that expert witnesses found no issues with company policies and employee depositions did not support claims of forced overwork. CVS disputes the trial court's finding that employees lied under oath about prescription errors, suggesting that contradictions in testimonies could be attributed to forgetfulness rather than deceit. Additionally, CVS contends that the trial court erred in concluding that Mrs. Salter received two drugs for high blood pressure while not receiving any for her hypertension, emphasizing a lack of supporting evidence and the interchangeable use of terms by her cardiologist. CVS seeks the vacating of the trial court's findings and challenges the denial of its summary judgment motion regarding Salter's claims of fraud, misrepresentation, punitive damages, and intentional infliction of emotional harm. To prove fraud, Salter must demonstrate five elements, including a false representation and justifiable reliance. CVS maintains that Salter has not shown that any misrepresentation induced her actions, as the pharmacist's statement about not filling the prescription indicated an assumption rather than a misrepresentation. Furthermore, CVS argues that the denial of its summary judgment for punitive damages was erroneous since such damages require clear evidence of willful misconduct or conscious indifference, which Salter has not provided.

Salter claims CVS is liable for punitive damages due to its indifference towards the consequences of misfilled prescriptions, citing a high number of errors, employee workload, absence of corrective policies, and lack of disciplinary measures. However, she provides no supporting evidence for these claims. The standard for punitive damages requires more than mere negligence; it necessitates evidence of malice, willfulness, or a wanton disregard for the rights of others. The record lacks evidence of egregious conduct or conscious indifference from CVS, indicating that the pharmacist's error amounts to gross negligence at most, insufficient for punitive damages.

Regarding the claim for intentional infliction of emotional distress, liability requires conduct that is extreme and outrageous, going beyond the bounds of decency. Salter's claim, based on receiving the incorrect medication, is characterized as negligence and does not meet the threshold for extreme and outrageous conduct. Thus, the trial court erred in denying CVS's motion for summary judgment on this claim.

Additionally, CVS contests the trial court's ruling that allowed evidence of 31 other lawsuits to be relevant and admissible at trial, a point not raised in the summary judgment motion or response. Consequently, this portion of the trial court’s order is vacated. The judgment is affirmed in part, reversed in part, and vacated in part, with concurrence from Ruffin, C. J. and Johnson, P. J. Salter subsequently added Reveo Discount Drug Center, Inc., CVS Corporation, and CVS Pharmacy, Inc. as defendants.