CHARLESTON – Attorney J. Robert Rogers of Hurricane, seeking to prove that West Virginia's medical malpractice law does not apply to pharmacies, produced affidavits to that effect from five members of the 1986 legislature.

Rogers himself, a former legislator, signed one of the affidavits.

All five swore that they considered including pharmacies in the Medical Professional Liability Act of 1986 but decided not to include them.

The affidavits failed to persuade Boone County Circuit Judge Lee Schlaegel. Last year he ruled that pharmacies fit the law's definition of "health care provider."

Rogers appealed the decision to the West Virginia Supreme Court of Appeals. The Justices planned to hear oral arguments March 13 in Morgantown.

Rogers represents August Phillips in a suit against Larry's Drive-In Pharmacy over a prescription for Colchicine, a gout medicine.

Phillips claimed in 2003 that a faulty prescription caused him to take a toxic dose of Colchicine, resulting in kidney damage that requires 12 hours of dialysis every day.

At first Rogers argued that the 1986 law applied to pharmacies. As the case advanced, however, he dropped that argument and the defense adopted it.

Rogers then filed his own affidavit and those of Truman Chafin, Robert Chambers, Michael Shaw and Larry Tucker.

Chafin still serves in the West Virginia Senate. Chambers is a United States district judge in Huntington.

The five served on a joint conference committee that drafted the final version of the act.

Rogers claimed the affidavits showed that committee members intentionally and purposefully omitted pharmacies from the definition of health care provider.

"None of the affidavits purport to give an individual's opinion as to whether he meant for pharmacies to be included when he was voting on, or even when drafting, the final version of the MPLA," he wrote in a brief for the state Supreme Curt of Appeals. "Rather, each affidavit proves the undisputed fact that the committee weighed including pharmacies and intentionally rejected them.

"The Act was to protect medical providers and it was the committee's final opinion that the class of health care providers did not include pharmacies."

For Larry's Drive-In Pharmacy, Jay Potter of Charleston urged the Justices to disregard the affidavits.

To accept them, Potter wrote, would tell West Virginia citizens that there are two classes of witnesses.

"The first, more common, class is made up of people who have information to offer but who are not permitted to offer that information in court unless they have been disclosed as witnesses and subjected to the discovery process," he wrote. "The second, more elite, class is made up of former legislators who are so highly regarded that they are exempt from disclosure and discovery and are therefore able to offer information to courts whenever and however they desire.

"And, if they are within the attorney subset of former legislators, they can even act as witnesses on behalf of clients whom they represent as attorneys."

The National Association of Chain Drug Stores, the West Virginia Pharmacists Association and Rite Aid of West Virginia all submitted briefs to the Justices in support of Larry's Drive-In Pharmacy.

For Rite Aid, Webster Arceneaux III of Charleston wrote that the pharmacy's instructions were exactly the same as those the treating physician issued.

He quoted the plaintiff's claim that the pharmacy failed to "observe and correct the erroneous and incomplete drug order as a member of the plaintiff's health care team."

"They cannot, on the one hand, sue the Respondent for professional negligence, claiming that its pharmacist should have exercised independent medical judgment and caught the doctor's alleged mistake and then, on the other hand, claim that a person in a pharmacy is a mere customer and that the pharmacy is nothing more than a vending machine that robotically dispenses medications," he wrote.

For the West Virginia Pharmacists Association, Philip Reale of Charleston wrote that Medicare and Medicaid recognize pharmacists as health care providers.

"Pharmacists are uniquely educated and continuously educated as the health care providers that have specialized knowledge on the appropriate use of the increasing number of medications, biologics, and medical devices prescribed as treatment for patients," Reale said.

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