                   IN THE COURT OF APPEALS OF TENNESSEE,
                                AT JACKSON

                                                                  FILED
             _______________________________________________________

                                      )                               July 7, 1999
JERRY NELMS as next of kin and        )   Shelby County Circuit Court
Executor of the Estate of INEZ NELMS, )   No. 81726 T.D.          Cecil Crowson, Jr.
                                      )                          Appellate Court Clerk
   Plaintiff/Appellant.               )
                                      )
VS.                                   )   C.A. No. 02A01-9805-CV-00137
                                      )
WALGREEN CO.,                         )
                                      )
   Defendant/Appellee.                )
                                      )
______________________________________________________________________________

From the Circuit Court of Shelby County at Memphis.
Honorable John R. McCarroll, Jr., Judge



James M. Simpson,
Heather C. Webb,
ALLEN, SCRUGGS, SOSSAMAN & THOMPSON, P.C., Memphis, Tennessee
Robert E. Hoskins, FOSTER & FOSTER, Greenville, South Carolina
Attorneys for Plaintiff/Appellant.


Dale H. Tuttle, GLASSMAN, JETER, EDWARDS & WADE, P.C., Memphis, Tennessee
Attorney for Defendant/Appellee.



OPINION FILED:

AFFIRMED AND REMANDED


                                          FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs)
HIGHERS, J.: (Concurs)
               Plaintiff Jerry Nelms, as next of kin and executor of the estate of his deceased wife,

Inez Nelms, appeals the trial court’s judgment awarding him the sum of $25,000 in compensatory

damages but denying his request for punitive damages. We affirm the trial court’s judgment based

upon our conclusion that the court properly directed a verdict in favor of Defendant/Appellee

Walgreen Company on the Plaintiff’s claim for punitive damages.



               In the fall of 1995, Inez Nelms suffered from depression that was associated with

other health problems she had experienced over the years. Nelms’ physician, Kirby Smith,

prescribed the drug Paxil to treat Nelms’ depression. On October 2, 1995, Plaintiff Jerry Nelms took

a written prescription for Paxil to Walgreen Company’s pharmacy on Knight Arnold Road in

Memphis. The Plaintiff returned later that evening to pick up the filled prescription.



               Approximately two weeks later, the Plaintiff returned to the same Walgreen Company

pharmacy to pick up a refill of his wife’s Paxil prescription. Upon his return home, the Plaintiff

noticed that the pills were smaller than the ones Inez Nelms had been taking. The Plaintiff returned

to the pharmacy and learned that the first prescription had contained Tagamet pills instead of Paxil

pills. While Paxil is a drug commonly used to treat depression, Tagamet generally is prescribed to

treat stomach ailments, such as indigestion and ulcers. Paxil pills and Tagamet pills are not similar

in appearance; they are different sizes and colors. The Walgreen Company pharmacist on duty

informed the Plaintiff that the pharmacy had made a mistake in filling Inez Nelms’ Paxil prescription

on October 2, 1995.



               In November 1995, Inez Nelms was hospitalized for thrombocytopenia, or a low

platelet count, the symptoms of which included bruising and mouth sores. Nelms blamed this

condition on the Tagamet that she had taken as a result of the mistake of Walgreen Company’s

pharmacy. Consequently, Nelms filed this lawsuit against Walgreen Company for the negligent

filling of her Paxil prescription. Nelms’ complaint sought both compensatory and punitive damages.

After Inez Nelms’ death in October 1997, Jerry Nelms was substituted as the Plaintiff in this action

as Inez Nelms’ next of kin and as executor of her estate.



               At trial, the evidence initially suggested that Walgreen Company pharmacist Ed
Daniel had filled Inez Nelms’ Paxil prescription on October 2, 1995. The computer-generated

prescription label contained Daniel’s initials, indicating that Daniel was the pharmacist who filled

the prescription at 7:19 p.m.; however, Walgreen Company’s schedules, which were introduced at

trial, indicated that Daniel’s shift was scheduled to end at 5:00 p.m. on that day. The original written

prescription contained no pharmacist’s initials, although the Tennessee Board of Pharmacy’s

regulations and Walgreen Company’s policies required the pharmacist who filled the prescription

to initial the original prescription form.1



                As a result of this discrepancy in Walgreen Company’s records, the Plaintiff sought

to show that a pharmacy technician, rather than a licensed pharmacist, filled Inez Nelms’ Paxil

prescription in violation of both the Board of Pharmacy’s regulations and Walgreen Company’s

policies. Walgreen Company employed pharmacy technicians to assist its pharmacists in filling

prescriptions. In filling the typical prescription, pharmacy technicians were permitted to obtain

customer information, generate a computer prescription label, pull and count the medication, place

the medication in the correct vial or bottle, and affix thereto the computer-generated label. The

pharmacist on duty then was required to verify the prescription’s accuracy before approving it for

the customer’s purchase. According to the Plaintiff’s theory, a pharmacy technician filled and

dispensed Inez Nelms’ Paxil prescription without obtaining the approval of the pharmacist on duty. 2



                Another Walgreen Company pharmacist, Steve Presson, testified that he had spoken

with Ed Daniel two or three times during the last six months of 1995 about concerns Presson had

with Daniel’s performance. Specifically, Presson was concerned because Daniel would become

distracted by other job duties and he would allow prescriptions to stack up waiting for his

verification. Presson could not say for sure, however, if Daniel was the pharmacist on duty at

7:19 p.m. on October 2, 1995, when Inez Nelms’ Paxil prescription was filled. Presson himself

might have been the pharmacist on duty at that time because, according to Walgreen Company’s

records, Presson was scheduled to work from 1:00 p.m. to 10:00 p.m. on that day.



        1
        See Tenn. Comp. R. & Regs. 1140-3-.05(1)(e) (now 1140-2-.01(13)(c) (as revised in
July 1998)).
        2
        See Tenn. Comp. R. & Regs. 1140-3-.05(1)(d) (now 1140-2-.01(13)(b) (as revised in
July 1998)) (requiring pharmacist to perform final verification of product prior to dispensing).
               At the conclusion of this evidence, the trial court granted Walgreen Company’s

motion for directed verdict on the Plaintiff’s claim for punitive damages. The trial court submitted

the Plaintiff’s claim for compensatory damages to the jury, which returned a verdict for the Plaintiff

in the amount of $25,000. On appeal from the trial court’s judgment entered on the jury’s verdict,

the Plaintiff’s sole contention is that the trial court erred in directing a verdict on his claim for

punitive damages.



               We begin our analysis of this issue with the premise that courts may award punitive

damages only in the most egregious of cases. Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901

(Tenn. 1992); accord Murvin v. Cofer, 968 S.W.2d 304, 311 (Tenn. App. 1997). Accordingly, in

evaluating a motion for a directed verdict on the issue of punitive damages, the trial court must

determine whether the plaintiff has presented clear and convincing evidence that the defendant has

engaged in intentional, fraudulent, malicious, or reckless conduct. Hodges v. S.C. Toof & Co., 833

S.W.2d at 901; Wasielewski v. K Mart Corp., 891 S.W.2d 916, 919 (Tenn. App. 1994). This higher

standard of proof is appropriate given the twin purposes of punitive damages awards: “to punish the

wrongdoer and to deter the wrongdoer and others from committing similar wrongs in the future.”

Id. at 900-01. As our supreme court has explained, “fairness requires that a defendant’s wrong be

clearly established before punishment, as such, is imposed; awarding punitive damages only in

clearly appropriate cases better effects deterrence.” Id. at 901.



               This court recently described the clear and convincing evidence standard, explaining

that



                       [a]lthough it does not require as much certainty as the
               “beyond a reasonable doubt” standard, the “clear and convincing
               evidence” standard is more exacting than the “preponderance of the
               evidence” standard. O’Daniel v. Messier, 905 S.W.2d 182, 188
               (Tenn. App. 1995); Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn.
               App. 1992). In order to be clear and convincing, evidence must
               eliminate any serious or substantial doubt about the correctness of the
               conclusions to be drawn from the evidence. Hodges v. S.C. Toof &
               Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992); O’Daniel v. Messier,
               905 S.W.2d at 188. Such evidence should produce in the fact-
               finder’s mind a firm belief or conviction as to the truth of the
               allegations sought to be established. O’Daniel v. Messier, 905
               S.W.2d at 188; Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn.
               App. 1985). In contrast to the preponderance of the evidence
               standard, clear and convincing evidence should demonstrate that the
                truth of the facts asserted is “highly probable” as opposed to merely
                “more probable” than not. Lettner v. Plummer, 559 S.W.2d 785, 787
                (Tenn. 1977); Goldsmith v. Roberts, 622 S.W.2d 438, 441 (Tenn.
                App. 1981); Brandon v. Wright, 838 S.W.2d at 536.



Bingham v. Knipp, No. 02A01-9803-CH-00083, 1999 WL 86985, at *3 (Tenn. App. Feb. 23, 1999)

(no perm. app. filed).



                As an initial matter, we conclude that the Plaintiff failed to present clear and

convincing evidence that Walgreen Company’s representatives engaged in fraudulent conduct in

connection with the misfilling of Inez Nelms’ prescription. In support of his fraud argument, the

Plaintiff relies primarily on the discrepancies in Walgreen Company’s records, which suggested that

Ed Daniel could not have filled Inez Nelms’ prescription at 7:19 p.m. on October 2, 1995, because

he was scheduled to leave work at 5:00 p.m. on that date. The Plaintiff argues that, from this

evidence, a jury could have inferred that Walgreen Company’s representatives engaged in fraudulent

conduct in an attempt to conceal the fact that a pharmacy technician, and not Daniel, filled Inez

Nelms’ prescription.



                We conclude that this argument is without merit. Although a jury could have found

from the foregoing evidence that Ed Daniel was not the pharmacist who filled Inez Nelms’

prescription, such a finding would not necessarily lead to the inference that a pharmacy technician

rather than a pharmacist filled the prescription. Steve Presson, the pharmacist who was scheduled

to work from 1:00 p.m. to 10:00 p.m. on October 2, 1995, testified that either he or Daniel was the

pharmacist on duty when the prescription was filled. Thus, the Plaintiff’s proof presented two

equally probable scenarios: that a pharmacy technician filled the prescription in Ed Daniel’s absence

and, alternatively, that Steve Presson filled the prescription. Inasmuch as the proof failed to establish

that one of these conclusions was more probable than the other, we hold that this proof cannot

constitute clear and convincing evidence that Walgreen Company’s representatives fraudulently

concealed the fact that a pharmacy technician filled Inez Nelms’ prescription. See Bingham v.

Knipp, 1999 WL 86985, at *4.



                Moreover, we note that the Plaintiff failed to assert either in his complaint or at trial
that Walgreen Company’s representatives had engaged in fraudulent conduct. Instead, the Plaintiff’s

claim for punitive damages focused on his allegation that Walgreen Company’s representatives

engaged in reckless conduct in misfilling Inez Nelms’ prescription. Inasmuch as the Plaintiff failed

to articulate his fraud theory at trial, we cannot fault the trial court for failing to submit the punitive

damages issue to the jury based upon this theory. See Lawrence v. Stanford, 655 S.W.2d 927, 929

(Tenn. 1983) (setting forth general rule that questions not raised in trial court will not be entertained

on appeal); Barnhill v. Barnhill, 826 S.W.2d 443, 458 (Tenn. App. 1991) (holding that party waives

issue by failing to raise it at trial court level).



                 We likewise conclude that the Plaintiff failed to present clear and convincing

evidence that Walgreen Company’s representatives engaged in reckless conduct in connection with

the misfilling of Inez Nelms’ prescription. A person acts recklessly when he “is aware of, but

consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard

constitutes a gross deviation from the standard of care that an ordinary person would exercise under

all the circumstances.” Hodges v. S.C. Toof & Co., 833 S.W.2d at 901. In the present case, the

Plaintiff contended that the following evidence demonstrated recklessness by Walgreen Company’s

representatives: Walgreen Company permitted medications to be dispensed without verification by

a pharmacist; Walgreen Company allowed Ed Daniel to be responsible for filling prescriptions

despite the fact that Daniel had been counseled for failing to stay at his workstation to verify

prescriptions; Walgreen Company permitted its pharmacy technicians to bag medications; and

Walgreen Company scheduled three pharmacy technicians to work with one pharmacist when the

Board of Pharmacy’s regulations permitted a ratio of only two to one.



                 We hold that this proof fails to meet the clear and convincing evidence standard

required to support a claim for punitive damages.3 The evidence failed to establish with a high

degree of probability that Walgreen Company permitted medications to be dispensed without

verification by a pharmacist. Instead, the evidence indicated that, if a pharmacist was unavailable

to verify prescriptions, the prescriptions simply accumulated until the pharmacist’s return to his



        3
        In light of our conclusion that the Plaintiff failed to present clear and convincing
evidence to support his allegations, we need not decide whether the Plaintiff’s allegations, if
proven, would support a claim for punitive damages.
workstation. The record contains no evidence that Walgreen Company’s pharmacy technicians ever

bypassed the Company’s verification procedures by dispensing medications without a pharmacist’s

approval. Similarly, although the evidence was undisputed that Steve Presson counseled Ed Daniel

a few times regarding his absence from his workstation, the record contains no evidence that any

unverified prescriptions were dispensed during Daniel’s shifts. Rather, the evidence showed that the

prescriptions accumulated until Daniel returned to his workstation. As for the Plaintiff’s complaint

that Walgreen Company permitted its pharmacy technicians to bag medications, we note that the

Board of Pharmacy’s regulations specifically allowed this practice: the Board authorized pharmacy

technicians to “[r]etrieve medication from stock, count or measure medication, and place the

medication in its final container.” Tenn. Comp. R. & Regs. 1140-10-.03(1)(e).4



                 We also reject the Plaintiff’s contention that Walgreen Company’s violation of the

Board of Pharmacy’s regulation governing the ratio of pharmacy technicians to pharmacists

constituted clear and convincing evidence of recklessness. As we previously stated, in order to be

considered reckless, the challenged conduct must demonstrate a conscious disregard of a substantial

and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the

required standard of care. Hodges v. S.C. Toof & Co., 833 S.W.2d at 901. In the present case, the

evidence showed that Walgreen Company usually scheduled three pharmacy technicians and two

pharmacists to work during various shifts on each weekday. For as long as thirty minutes to one

hour of the typical weekday, three pharmacy technicians remained on duty while only one pharmacist

worked. Although this 3:1 ratio technically violated the applicable Board regulation permitting only

a 2:1 ratio of pharmacy technicians to pharmacists,5 the evidence failed to show that this scheduling

violation constituted a gross deviation from the required standard of care. Any violation occurred



       4
        The comparable regulation now authorizes pharmacy technicians to “[r]etrieve
prescription drugs and devices and related materials from stock, count or measure prescription
drugs and devices and related materials, and place the prescription drugs and devices and related
materials in the dispensing container.” Tenn. Comp. R. & Regs. 1140-2-.02(2)(e) (as revised in
July 1998).
       5
           The applicable Board regulation formerly provided that

       [t]he actual working ratio of technicians to pharmacists shall not be more than 2:1
       in any practice site; provided, however, that for purposes of this rule, a pharmacy
       intern shall not be considered to be a technician.

Tenn. Comp. R. & Regs. 1140-10-.04.
during only a thirty-minute to one-hour period of the fourteen-hour workday, and the evidence failed

to suggest that Walgreen Company’s representatives were aware that this scheduling violated a

Board regulation or deviated from the required standard of care. Moreover, the rules and regulations

promulgated by the Tennessee Board of Pharmacy do not necessarily establish the duty of care owed

by a pharmacist, although they may provide guidance in determining if there is a duty of care under

the circumstances. Pittman v. Upjohn Co., 890 S.W.2d 425, 435 (Tenn. 1994). In any event, we

note that Walgreen Company was not violating this regulation at the time Inez Nelms’ prescription

was filled.6



               Finally, we reject the Plaintiff’s argument that the acts of Walgreen Company’s

representatives constituted gross negligence because they involved a dangerous or lethal

instrumentality. In support of this argument, the Plaintiff cites cases holding that “[a]n act which

otherwise would be simple negligence, may amount to gross negligence if it involves a dangerous

or lethal instrumentality.” Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn.

1994) (driving while intoxicated); accord Phelps v. Magnavox Co., 497 S.W.2d 898, 906 (Tenn.

App. 1972) (supplying electricity). Although we do not question the validity of this rule, we have

found no authority for applying this rule to an action for professional negligence against a

pharmacist. The standard of care in an action for a pharmacist’s negligence is established by the

standard of care required by the pharmacy profession in the same or similar communities. Pittman v.

Upjohn Co., 890 S.W.2d 425, 434 (Tenn. 1994); Dooley v. Everett, 805 S.W.2d 380, 385 (Tenn.

App. 1990). Inasmuch as the pharmacy profession determined the applicable standard of care in this

case, we see no reason to judicially impose a heightened duty of care on Walgreen Company’s

pharmacists.



               In sum, we agree with the trial court’s ruling that, although the evidence in this case


        6
        We further note that the present regulation now permits a 3:1 ratio of pharmacy
technicians to pharmacists under certain circumstances:

        The actual working ratio of pharmacy technicians to pharmacists shall not be
        more than 2:1 in any pharmacy practice site; provided, however, that the ratio may
        be increased to a maximum of 3:1 if at least one (1) of the pharmacy technicians is
        a certified pharmacy technician. For purposes of this rule, a pharmacy intern is
        not considered to be a pharmacy technician.

Tenn. Comp. R. & Regs. 1140-2-.02(5) (as revised in July 1998).
clearly supported a claim of ordinary negligence, the evidence did not support a finding that

Walgreen Company’s representatives engaged in reckless conduct such as to constitute a gross

deviation from the required standard of care. We reiterate that courts may award punitive damages

only in the most egregious of cases. After carefully reviewing the evidence presented in this case,

we remain convinced that the trial court properly declined to submit the punitive damages issue to

the jury.



               The trial court’s judgment is affirmed, and this cause is remanded for further

proceedings consistent with this opinion. Costs of this appeal are taxed to the Plaintiff, for which

execution may issue if necessary.



                                                     ____________________________________
                                                     FARMER, J.



______________________________
CRAWFORD, P.J., W.S. (Concurs)



______________________________
HIGHERS, J. (Concurs)
