Florida's Medical Malpractice Pre-Suit Requirements Held Not Applicable To Pharmacists and Pharmacies

27 Jul 2007

In a 1995 Opinion of Florida's 5^th District Court of Appeal it was held that pharmacies and pharmacists are not "health care providers" within the meaning of the Medical Malpractice Reform Act. This means that the elaborate Pre-Suit procedures required against "health care providers" do not have to be followed in a claim against a pharmacist or pharmacy in the State of Florida.

Excerpts of the Opinion of the Court follow:

20 Fla. L. Weekly D2304a

SOVA DRUGS, INC., et al., Petitioners, v. TRAIY PATRICK BARNES, et al., Respondents. 5th District. Case No. 95-1719. Opinion filed October 13, 1995.

(SHARP, W., J.) The mother of Traiy Patrick Barnes, respondent in this case, filed suit against Sova Drugs, Inc., petitioner in this case, for injuries suffered by her son, when the pharmacy allegedly misfilled a prescription for him. Sova filed a motion to dismiss on the ground that Barnes failed to comply with the presuit investigation and notice requirements of the Medical Malpractice Reform Act, sections 766.101 through 766.212, Florida Statutes (1993). The trial court denied the motion because it held the pharmacy is not a ``health care provider'' under the Medical Malpractice Reform Act, and thus it is not entitled to require that plaintiffs suing for misfilling a prescription comply with the presuit investigation and notice requirements of the statute. Sova seeks review of this ruling by filing a petition for certiorari.

We agree with the trial court's ruling.

This is apparently a case of first impression in this state. Section 766.102, Florida Statutes (1993) sets out the standards for recovery in medical negligence cases. Subsection (1) provides:

In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in Section 768.50(2)(b), the claimant shall have the burden of proving by the greater weight of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider ... (emphasis supplied)

Section 766.106(2), Florida Statutes (1993) requires that presuit notice be given by a claimant to ``each prospective defendant''. In Weinstock v. Growth, 629 So.2d 835 (Fla. 1993), the supreme court stated that the ``prospective defendants'' entitled to presuit notice are the health care providers listed in Section 768.50(2)(b), Florida Statutes (1985). That provision defines ``health care provider'' as:

[H]ospitals licensed under chapter 395; physicians licensed under chapter 458; osteopaths licensed under chapter 459; podiatrists licensed under chapter 461; dentists licensed under chapter 466; chiropractors licensed under chapter 460; naturopaths licensed under chapter 462; nurses licensed under chapter 464; clinical laboratories registered under chapter 483; physicians' assistants certified under chapter 458; physical therapists and physical therapist assistants licensed under chapter 486; health maintenance organizations certified under part 2 of chapter 641; ambulatory surgical centers as defined in paragraph (c); blood banks, plasma centers, industrial clinics, and renal dialysis facilities; or professional associations, partnerships, corporations, joint ventures, or other associations for professional activity by health care providers.

The supreme court held that a psychologist is not a health care f offering free services to the poor). The only sensible approach in interpreting this Chapter, is to limit the applicability of each section to its own definition of ``health care provider,'' if there is one provided. We conclude that section 768.50(2)(b) identifies the only health care providers who are entitled to presuit investigation and notice requirements prior to filing a civil suit for malpractice. Weinstock v. Growth, supra. Pharmacists and pharmacies are not among those listed.

Petition for Writ of Certiorari DENIED. (COBB and HARRIS, JJ., concur.)

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[1]``Expressio unius est exclusio alterius,'' that is, the mention of one thing implies the exclusion of another. See Diversified Services, Inc. v. Avila, 606 So. 2d 364 (Fla. 1992); Butterworth v. Caggiano, 605 So. 2d 56 (Fla. 1992); Scope v. Fannelli, 639 So. 2d 141 (Fla. 5th DCA 1994); Chandra v. Gadodia, 610 So. 2d 15 (Fla. 5th DCA 1993), cert. denied, 621 So. 2d 432 (Fla. 1993).