MORGANTOWN – Affidavits from five authors of the Medical Professional Liability Act of 1986 failed to convince the West Virginia Supreme Court of Appeals that the act does not cover pharmacies.

In oral arguments March 13 at the West Virginia University College of Law, Justice Spike Maynard told attorney J. Robert Rogers of Hurricane that the affidavits snatched defeat from the jaws of victory.

In the affidavits, members of the 1986 Legislature swore that inclusion of pharmacies in the medical malpractice law was considered and rejected.

The law set limits on damages in medical malpractice claims.

Rogers himself signed one of the affidavits.

He represents August Phillips, who sued Larry's Drive-In Pharmacy in Boone County circuit court.

Phillips claimed that a faulty prescription for Colchicine, a gout medicine, caused a toxic dose that damaged his kidneys.

The pharmacy argued that it wrote the prescription exactly as the physician directed. Phillips sued the physician, who settled the claim.

Circuit Judge Lee Schlaegel ruled last year that a pharmacy is a health care provider. He certified the question for the Supreme Court of Appeals.

In oral arguments, Rogers began reviewing the history of the 1986 law.

Chief Justice Robin Davis said, "Let's talk about what is in the record."

Justice Brent Benjamin said, "We don't have an official legislative history to work from. Other legislators may have other opinions."

Rogers said the signers of the affidavits drafted the act. Benjamin said, "The key here isn't drafting. It's the final vote."

Benjamin said the Legislature left an opening in its list of health care providers by adding the words, "including but not limited to."

He said, "The question is whether or not they come in through that opening."

Rogers said, "We are dealing with pharmacies, not pharmacists. A village idiot, if he has enough money, can own a pharmacy. But he can't be a pharmacist."

Albright asked again about the meaning of, "but not limited to."

Rogers said, "They did not want to be in the bill. They weren't having any problem with their insurance."

Benjamin asked the name of the drug. When Rogers answered, Maynard said, "Did you say Colchicine?" Rogers said yes.

Maynard said, "You got my attention. I take it."

For the defense, Jay Potter of Charleston said Rogers alleged that the pharmacy should have corrected the physician's prescription.

When Potter referred to the affidavits, Justice Joseph Albright said he sympathized with Potter. Albright said the affidavits were not relevant.

Potter tried to connect the 1986 law to Chapter 30, on professional licenses. He said, "They both go to health care."

Albright said Chapter 30 applies to all licensed professionals. He said, "That won't make a connection."

Albright said, "Manicurists - There is nothing more dangerous than an infected toe."

Potter again brought up the affidavits. Chief Justice Robin Davis said, "Let's get back to the certified question."

Maynard asked what position pharmacies took in 1986. Potter said all he knew was what he read in the files.

In rebuttal, Rogers said, "Pharmacies do not deliver health care."

Albright said, "You are making an argument you don't need to make. Of course pharmacies deliver health care. That is not the question before us."

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