CHARLESTON – Pharmacies do not provide health care, the West Virginia Supreme Court of Appeals has decided.

The Justices unanimously agreed in a June 28 opinion that pharmacies cannot enjoy the benefits of a 1986 law that limits judgments in negligence claims against health care providers.

The Justices corrected Boone Circuit Judge Lee Schlaegel, who last year defined Larry's Drive-In Pharmacy as a health care provider.

"A patient's relationship with a pharmacy is not the equivalent of a doctor-patient relationship," Justice Larry Starcher wrote. "A patient goes to a drug store only after the patient visits a physician and receives a prescription, and then largely to purchase a product."

He wrote that legislators who passed the Medical Professional Liability Act intended to exclude pharmacies.

Although Starcher took a position that legislators from 1986 recommended in affidavits, he declared that the Court paid no attention to the affidavits.

"Courts should not be placed in the position of passing upon the credibility of legislators and ex-legislators," he wrote.

The five who signed the affidavits swore that at committee meetings they deliberately excluded pharmacies from the definition of health care provider.

"Plaintiffs contend that the affidavits are merely statements of the history underlying the adoption of the Medical Professional Liability Act," Starcher wrote. "We disagree.

"While the information contained in the affidavits is persuasive, the information is not corroborated by the legislative history because the Legislature failed to preserve any record of the committee meetings to which the affidavits refer."

Now Schlaegel can bring the suit to trial as a negligence claim under common law.

Plaintiff August Phillips already has settled with physician Sriramloo Kesari, who in 2001 prescribed Colchicine for acute gouty arthritis in Phillips's left foot.

Kesari wrote instructions to take a tablet every hour until pain stopped or when diarrhea or nausea started.

Larry's Drive-In Pharmacy filled the prescription and printed instructions that exactly matched Kesari's instructions.

In 2002, Phillips suffered something like a stroke. Doctors determined that a toxic dose of Colchicine had damaged his kidneys.

They told him he faced routine dialysis for the rest of his life.

He sued in 2003, claiming Kesari should have specified a limit on the number of tablets he could take in a defined time period.

He also sued Larry's Drive-In Pharmacy, claiming it should have recognized the potential toxicity of the prescription.

He argued that the pharmacy should have clarified the instructions and set a daily maximum.

After Phillips and Kesari settled, the pharmacy declared it would defend itself under the 1986 law as a health care provider.

Jay Potter of Charleston argued for Larry's Drive-In Pharmacy that the law allowed additions to the list of providers.

He pointed out that the Court had already stretched the definition of provider once, to add emergency medical technicians to the list.

For Phillips, attorney Robert Rogers of Hurricane argued that emergency technicians actually laid hands on patients and were solely responsible for their well being on the scene and in transport.

Rogers also hit upon a novel strategy. As a former state Senator who helped write the law, he offered himself as an expert.

He swore in an affidavit that legislators deliberately excluded pharmacies from the definition of provider.

He submitted similar affidavits from four others who helped write the law -- 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.

Larry's Drive-In Pharmacy asked Schlaegel to ignore the affidavits. Schlaegel declined to consider them.

Schlaegel signed an order defining the pharmacy as a provider, but with doubts. He certified the question to the Supreme Court of Appeals.

As friends of the Court, the National Association of Chain Drug Stores, the West Virginia Pharmacists Association and Rite Aid of West Virginia submitted briefs in support of Larry's Drive-In Pharmacy.

The Justices heard oral arguments March 13, at West Virginia University Law School in Morgantown.

In the end they agreed that they should not interpret the medical malpractice law broadly because it derogated common law.

"Where there is any doubt about the meaning or intent of a statute in derogation of the common law, the statute is to be interpreted in a manner that makes the least rather than the most change in the common law," Starcher wrote.

Justice Spike Maynard concurred but wrote separately that he would have considered the affidavits. He read them not as opinions but as proof.

"The best evidence of legislative intent, which this Court is required to consider when construing a statute, is the affidavits of the legislators who were responsible for formulating the final content," Maynard wrote. "I do not see how these affidavits, which are powerful and persuasive evidence of legislative intent, can be ignored."

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