                          STATE OF MICHIGAN

                             COURT OF APPEALS


ESTATE OF JUDITH ANN KELLY, by WENDY                               UNPUBLISHED
MCKNIGHT, Personal Representative, and                             October 23, 2018
PATRICIA ALDRICH,

               Plaintiffs-Appellees,

v                                                                  No. 338140
                                                                   Saginaw Circuit Court
OHM SPECIALTY PHARMACY, LLC, doing                                 LC No. 16-028627-NO
business as DOWNS PHARMACY,

               Defendant-Appellant,
and

CHIDOZIE JOSHUA ONONUJU, D.O., RAMON
RODRIGUEZ, M.D., and AMERICAN
MEDICAL MISSIONARY CARE, INC.,

               Defendants.


Before: METER, P.J., and GADOLA and TUKEL, JJ.

TUKEL, J. (concurring).

                                                I.

       I join fully in the majority opinion, which correctly sets forth what has long been settled
law in Michigan—that pharmacies and pharmacists generally have no potential liability to
pharmacy customers and, by extension, third-parties who fill facially valid prescriptions
according to the prescribed terms, which cause injury. I write separately because some of the
bases for reaching that conclusion have been outstripped by subsequent legislative events, and
others seem to have been incorrect even when decided. Consequently, our Supreme Court or
Legislature might wish to revisit this issue to bring current law more in line with recent
developments.

                                               II.

        As noted by the majority, this Court has consistently held that pharmacists have no duty
to look beyond a prescription which is facially valid. The majority properly relies on such cases,

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as they are binding on us. MCR 7.215(B). However, the underlying principle on which those
cases relied, that a pharmacist is not required to look beyond the facial validity of a prescription
for a controlled substance is not correct, and was not correct at the time those cases were
decided; both federal and state law previously imposed and today continue to impose an
obligation on pharmacists to independently consider whether a prescription for a controlled
substance has been issued “in the usual course of professional practice,” meaning that it was
issued in good faith and for a legitimate medical purpose.

                 A. History of Cases Involving Pharmacist Liability to Third-Parties

        As the majority opinion notes, this Court has addressed the duty of a pharmacy toward a
patient in a number of cases. The two principal building blocks are Adkins v Mong, 168 Mich
App 726, 728-729; 425 NW2d 151 (1988), and Stebbins v Concord Wrigley Drugs, Inc, 164
Mich App 204, 207; 416 NW2d 381 (1987).

        Adkins involved negligence and malpractice claims against the defendant physicians and
pharmacies for their prescribing and supplying the plaintiff with excessive amounts of controlled
substances over the course of six years. Adkins, 168 Mich at 727. The plaintiff alleged that he
became addicted to various substances as a result of the defendants’ negligence and malpractice.
Id. This Court stated that a pharmacist has a duty to fill lawful prescriptions properly and will
not generally be held liable when he or she correctly fills a prescription that was issued by a
licensed physician. Id. at 729, citing Stebbins, 164 Mich App at 245, and Lemire v Garrard
Drugs, 95 Mich App 520, 528; 291 NW2d 103 (1980). The Court concluded that a pharmacist
does not have a legal duty “to monitor and intervene with a customer’s reliance on drugs
prescribed by a licensed treating physician.” Adkins, 168 Mich at 732.

        Adkins, as noted, had relied on Stebbins, in which this Court addressed whether a
pharmacy had a duty to warn a patient to whom it dispensed a prescription medication which was
not a controlled substance.1 This Court noted that “[a] pharmacist is generally not held liable for
damages resulting from a correctly filled prescription.” Stebbins, 164 Mich App at 216. It ruled
that “a pharmacist has no duty to warn the patient of possible side effects of a prescribed
medication where the prescription is proper on its face and neither the physician nor the
manufacturer has required that any warning be given to the patient by the pharmacist.” Id. at
218.

        Lemire, also cited by Adkins, also did not involve a controlled substance. Lemire
extensively discussed product liability, which has no applicability here, but devoted only a single
paragraph to the issue of pharmacist liability for negligence, citing only Am Jur 2d and no other
authority. Lemire, 95 Mich App at 526.

        Under our rules, neither Adkins, Stebbins, nor Lemire is controlling, as each was issued
prior to 1990, see MCR 7.215(J)(1), and, in any event, as noted, neither Stebbins nor Lemire
involved controlled substances. However, in Kintigh v Abbott Pharmacy, 200 Mich App 92, 94;


1
    The drug at issue was Tofranil, which is not a controlled substance.


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503 NW2d 657 (1993), this Court again considered whether the defendant pharmacy owed the
plaintiff a duty to refrain from selling him Schedule V, nonprescription controlled substances
which allegedly led to and fed his addiction. This Court, relying on Adkins, found that the
pharmacy owed the plaintiff no duty to discover his addicted status and, having no knowledge of
this status, it “had no duty to refuse to sell to him.” Id. The Kintigh Court stated that in Adkins,
the panel had “rejected the theory that a pharmacist owed a customer a legal duty to monitor
drug usage.” Id. A dissent did consider the pharmacist’s possible duty to consider the propriety
of a pharmacist’s dispensing of controlled substances, at least those in Schedule V, see id. at 98-
102 (SHELTON, J., dissenting), which permit but do not require a prescription, see Note 3, infra.2
However, neither the majority nor the dissent considered the federal regulation discussed in the
next part of this opinion.

                    B. Federal Regulations Regarding Controlled Substances

        In short, as already noted, none of the cases which led to the extant state of the law
regarding pharmacist liability for the dispensing of controlled substances considered a federal
regulation which imposes on pharmacists the “corresponding responsibility” to consider the
propriety of a prescription. Adkins, the earliest case involving a controlled substance, was
decided in 1987; Lemire, the oldest case involving pharmacist liability in general was decided in
1980. Effective in 1974, however, a federal regulation, still in force today, provided:

               A prescription for a controlled substance to be effective must be issued for
       a legitimate medical purpose by an individual practitioner acting in the usual
       course of his professional practice. The responsibility for the proper prescribing
       and dispensing of controlled substances is upon the prescribing practitioner, but a
       corresponding responsibility rests with the pharmacist who fills the prescription.
       An order purporting to be a prescription issued not in the usual course of
       professional treatment or in legitimate and authorized research is not a
       prescription within the meaning and intent of section 309 of the Act (21 USC
       829) and the person knowingly filling such a purported prescription, as well as
       the person issuing it, shall be subject to the penalties provided for violations of


2
  The four cited cases, Adkins, Stebbins, Lemire and Kintigh, committed two major errors: they
treated prescriptions for controlled substances and non-controlled substances interchangeably;
and they overlooked state statutory and federal regulatory authority regarding controlled
substances, see Part II-B, infra. Thus, in my view, Stebbins and Lemire have no applicability to
the issues presented here because my analysis is limited to Michigan statutory law and federal
regulations regarding controlled substances. The allegations in the complaint in this case relate
to controlled substances. Moreover, Stebbins stated that “[w]e need not consider a pharmacist’s
liability in situations such as where the pharmacist knows of a particular patient’s unique
problems or where a pharmacist fills two incompatible prescriptions.” Stebbins, 164 Mich App
at 218. Of course, in the context of controlled substances, such situations fall squarely within the
pharmacist’s “corresponding responsibility” under federal regulations to consider the validity of
such prescriptions, see Part II-B, infra.


                                                -3-
       the provisions of law relating to controlled substances. [36 Fed Reg 80, § 306.04
       (April 24, 1971), codified thereafter and currently at 21 CFR 1306.04(a) (2018)
       (emphasis added).]

        Thus, it has been the case since 1971 that under federal regulations, a physician can be
held criminally liable when he prescribes or administers controlled substances other than “within
the usual course of professional practice,” United States v Moore, 423 US 122, 138-139; 96 S Ct
335; 46 L Ed 2d 333 (1975), and a pharmacist has a “corresponding responsibility” to ensure that
a prescription meets that requirement. That regulation has applied with full force to Michigan
pharmacists since its inception, based on the Supremacy Clause, see US Const, art VI, cl 2.
Thus, Adkins was incorrect when it held that a pharmacist had no legal duty to monitor
prescribing by a physician; federal law in fact created such an obligation as to controlled
substances. The complaint in this case alleged that the physicians’ prescribing of controlled
substances was negligent, and that the pharmacist who filled the prescriptions was himself
negligent. Under the federal regulation, that allegation at a minimum stated facts regarding the
physician’s prescribing which the pharmacist was, under his corresponding responsibility,
required to consider.

                 C. Michigan Statutory Law Regarding Controlled Substances

        Federal law is not the only basis for finding that a pharmacist has a duty to monitor a
pharmacist’s prescribing of controlled substances. Michigan law expressly incorporates federal
law in this regard. Michigan statutory law has long provided that “[t]he person to whom a
pharmacy license is issued and the pharmacists on duty [are] responsible for compliance with
federal and state laws regulating the distribution of drugs and the practice of pharmacy.” MCL
333.17741(2). That statute traces back to 1978, antedating cases such as Adkins and Kintigh (as
well as the cases involving non-controlled drugs), contrary to their holdings that Michigan
pharmacists generally have no duty to monitor prescribing by doctors. See 1978 PA 368
(effective September 30, 1978).

        Moreover, our Legislature has recently tightened the standards by which pharmacists may
dispense controlled substances. See 2017 PA 251 (effective March 27, 2018). That Act,
codified at MCL 333.7333, provides that a practitioner, defined by the Act to include
pharmacists, “in good faith, may dispense a controlled substance . . . upon receipt of a
prescription of a [physician] licensed under [MCL 333.7303].” MCL 333.7333(2); see also
MCL 333.7333(4).3 A pharmacist, as a licensee, may not “dispense a controlled substance in


3
  Subsection 2 applies to schedule II controlled substances. Subsection 4 applies to controlled
substances in schedules III-V. The only substantive difference is that prescriptions for controlled
substances in schedules III-V can be written or oral, while prescriptions for a schedule II
controlled substance must be written. Additionally, while controlled substances in schedule V
may be dispensed with or without a prescription, they “must not be distributed or dispensed for
other than a medical purpose, or in any manner except in accordance with rules promulgated by
the administrator.” MCL 333.7333(5).


                                                -4-
violation of [MCL 333.7333].” MCL 333.7405(1)(a). And a pharmacist who does so is subject
to civil and criminal penalties. MCL 333.7405(2); MCL 333.7406.

       MCL 333.7333(1) then provides standards, by providing an extensive definition of the
term “good faith”:

       “[G]ood faith” means the prescribing or dispensing of a controlled substance by a
       practitioner licensed under [MCL 333.7303] in the regular course of professional
       treatment to or for an individual who is under treatment by the practitioner for a
       pathology or condition other than that individual’s physical or psychological
       dependence upon or addiction to a controlled substance, except as provided in this
       article. Application of good faith to a pharmacist means the dispensing of a
       controlled substance pursuant to a prescriber’s order which, in the professional
       judgement of the pharmacist, is lawful. The pharmacist shall be guided by
       nationally accept professional standards including, but not limited to, all of the
       following, in making the judgment:

               (a)    Lack of consistency in the doctor-patient relationship.

               (b)   Frequency of prescriptions for the same drug by 1 prescriber for
       larger numbers of patients.

               (c)    Quantities beyond those normally prescribed for the same drug.

               (d)    Unusual dosages.

               (e)    Unusual geographic distances between patient, pharmacist, and
       prescriber.

                        D. Application to Civil Liability for Prescription

         The authorities cited above relate to possible criminal liability by pharmacists under
federal law and the Michigan Public Health Code, and thus do not directly control possible civil
liability by a pharmacist. Rather, the statute only defines what constitutes a lawfully issued and
filled prescription. A physician and, in turn, a pharmacist who violates the statutory provisions
by “not acting in good faith ‘in the course of professional practice or research’ are prosecutable”
under the Controlled Substances Act of 1971. People v Alford, 405 Mich 570, 579; 275 NW2d
484 (1979).4




4
  At the time Alford was decided, MCL 335.341(1) of Michigan’s Controlled Substances Act of
1971, provided for criminal penalties for unlawful distribution or dispensing of controlled
substances. That section was repealed and supplanted by the Public Health Act of 1978, which
remains in force as amended. See 1978 PA 368, codified at MCL 333.1101 et seq.


                                                -5-
        Nevertheless, the fact remains that our Legislature has expressly set forth, with a fair
amount of detail, a particular number of factors for pharmacists to consider in applying their
“corresponding responsibility” under federal law, and its state-law analogue, their obligation to
act in good faith, regarding prescriptions for controlled substances. As the majority notes, in
determining whether a common-law duty arises, and thus civil liability attaches, courts must
consider various factors. The factors which are pertinent to the determination of the existence of
a duty include the “ ‘foreseeability of the harm, degree of certainty of injury, closeness of
connection between the conduct and injury, moral blame attached to the conduct, policy of
preventing future harm, and . . . the burdens and consequences of imposing a duty and the
resulting liability for breach.’ ” Valcaniant v Detroit Edison Co, 470 Mich 82, 86; 679 NW2d
689 (2004), quoting Buczkowski v McKay, 441 Mich 96, 101 n 4; 490 NW2d 330 (1992).

       As noted in Part II-A of this opinion, this Court has previously weighed those factors, and
we are not at liberty to reconsider or overrule those holdings.5 Nonetheless, the authorities cited
implicate “ ‘the burdens and consequences of imposing a duty and the resulting liability for
breach.’ ” Valcaniant, 470 Mich at 86, quoting Buczkowski, 441 Mich at 101 n 4.

        The “corresponding responsibility” of federal law imposes a “significant burden and
consequence” on pharmacists as to the proper prescribing and dispensing of controlled
substances because it creates an obligation for pharmacists to consider the pattern of prescribing
of controlled substances by doctors and whether such prescribing is proper. As such, the federal
regulation is a factor which should properly be considered in determining whether a common-
law duty should be imposed, and thus whether, under any circumstance, a pharmacist can be ever
be found negligent for filling a facially valid prescription for a controlled substance according to
its terms. Based on the undisputed facts of this case, one could reasonably question whether the
doctor acted in good faith in prescribing. See, generally, ante at 1-3. As the pharmacy had a
corresponding responsibility to that of the pharmacist, a very significant burden, if we were
writing on a blank slate in considering a pharmacist’s potential duty, we might well determine
that our definition of that duty would permit a jury to find that the pharmacy was liable.

       Moreover, even completely setting aside the issue with regard to “corresponding
responsibility,” our Legislature has recently made clear that a pharmacist acts lawfully in filling


5
  See Part II and Part II-A, supra. Justice Brandeis famously opined that “[s]tare decisis is
usually the wise policy, because in most matters it is more important that the applicable rule of
law be settled than that it be settled right.” Burnet v Coronado Oil & Gas Co, 285 US 393, 406;
52 S Ct 443; 76 L Ed 815 (1931) (BRANDEIS, J., dissenting), majority overruled in part in
Helvering v Mountain Producers Corp, 303 US 376; 58 S Ct 623; L Ed 907 (1938). In the next
sentence, Justice Brandeis went on to note that “[t]his is commonly true even where the error is a
matter of serious concern, provided correction can be had by legislation.” Id. My point is that
our Legislature has set forth public policy considerations which arguably apply here, and if they
do, they may constitute a correction of the errors discussed. As noted, we are constrained by the
Michigan Court Rules to follow stare decisis as to this issue, but our Supreme Court is not, as the
opinions at issue are from this Court only and thus not binding on our Supreme Court.


                                                -6-
a prescription for a controlled substance only if he or she acts in good faith. The Legislature has
provided a detailed list of non-exclusive factors to use in determining a pharmacist’s good faith.
The requirement of good-faith, and the list of factors to consider in determining it, seems
inconsistent with the prior approach which this Court endorsed, in which the Court held flatly
that “there exists no legal duty on the part of a pharmacist to monitor and intervene with a
customer’s reliance on drugs prescribed by a licensed treating physician.” Adkins, 168 Mich
App at 732.

        The complicating factor in this case is that the Legislature’s actions in amending MCL
7333(1), as well as subsections (2) and (4), took place after the trial court had granted summary
disposition based on existing cases. “Usually in appellate review, we look to the law as it was at
the time of the judicial or administrative action from which appeal is taken.” Ann Arbor Bank &
Trust Co v Comm’r of Fin Inst Bureau, 85 Mich App 131, 136; 270 NW2d 725 (1978). An
exception lies if the statute is remedial or procedural in nature, as long as it does not deny vested
rights. Aztec Air Service, Inc v Dep’t of Treasury, 253 Mich App 227, 233; 654 NW2d 925
(2002). “A statute is remedial in nature when it corrects an existing oversight in the law,
redresses an existing grievance, introduces regulations conducive to the public good, or intends
to reform or extend existing rights.” Lenawee Co v Wagley, 301 Mich App 134, 174-175; 836
NW2d 193 (2013).

        Here, as noted, the statute itself is an amendment to the Public Health Code, which is a
“regulation[] conductive to the public good.” Id. Thus, the issue is not whether the statute
established, under some circumstances, civil liability for acts by pharmacists; it obviously did
not. Rather, the issue is whether, in defining public policy in this state, our Legislature set forth
factors which are relevant to determining whether our courts should find that a common-law duty
arises. See Valcaniant, 470 Mich at 86. Although we are obligated under the Michigan Court
Rules to follow cases published since 1990, in light of the amendment of MCL 333.7333 by
2017 PA 251, I think our Supreme Court should, for the reasons stated, consider the validity of
Kintigh and other cases which preclude, as a matter of law, pharmacist liability for filling facially
valid prescriptions for a controlled substance written by a physician. Our Supreme Court has
never considered this issue, and the newly enumerated statutory factors could alter the
conclusion this Court has reached in Kintigh and other cases.

                                                III.

         I am not calling for a conflict panel, as I am not stating that consideration of the
authorities I cite, especially without the benefit of full briefing on the parties’ behalf, would
necessarily cause me to diverge from Kintigh. See MCR 7.215(J)(2). But, for the reasons stated,
I hope that our Supreme Court will grant leave, and consider whether in light of the state and
federal authorities cited, “ ‘the burdens and consequences of imposing a duty and the resulting
liability for breach,’ ” Valcaniant, 470 Mich at 86, quoting Buczkowski, 441 Mich at 101 n 4,
together with all of the other factors set forth by Valcaniant, would support liability in this case.



                                                              /s/ Jonathan Tukel


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