District court did not abuse its discretion in granting a new trial when the jury's verdict of negligence without causation was not justified by the evidence.
Reversed, vacated, and remanded.
Heard, considered, and decided by the court en banc.
The opinion of the court was delivered by: Anderson, Paul H., Justice.
Took No Part: Blatz, C.J.
In June 1999, Doris Clifford was an 84-year-old woman in reasonably good health for a person her age. She was recovering from a cold and was experiencing some discomfort as the result of phlegm. To relieve this discomfort, her physician prescribed a decongestant, Liquibid, but her pharmacy dispensed Lithobid, a drug containing lithium and used to treat bipolar disorder. Eight days after receiving the Lithobid, Clifford was admitted to a hospital where 11 days later she died of complications from lithium toxicity.
Clifford's estate sued Geritom Med, Inc., the pharmacy that dispensed the Lithobid. Geritom filed a third-party complaint against the prescribing physician, his nurse, and the physicians who later treated Clifford. The district court dismissed the third-party defendants. After Geritom asserted a different theory of liability, the court did allow the prescribing physician and his nurse to be included on the special verdict form for the purpose of apportioning fault. A jury found Geritom not negligent in Clifford's death. The jury also found the physician "and/or" nurse negligent, but found that this negligence was not a direct cause of Clifford's death. Clifford moved for judgment notwithstanding the verdict (JNOV) or a new trial. The court denied the JNOV motion, but granted a new trial. A second jury found Geritom liable and Geritom appealed. The court of appeals reversed the district court's grant of a new trial. We reverse.
At 12:46 p.m. on June 17, 1999, Doris Clifford called the Phone Care number at Park Nicollet Clinics' central office. Clifford, age 84, was recovering from a cold and reported that her condition had "greatly improved" except for a phlegm problem that was making her feel uncomfortable. The nurse receiving the call faxed a handwritten note describing the nature of Clifford's call to Clifford's physician, Dr. Michael Gmitro. Dr. Gmitro's office is at Park Nicollet's Carlson Branch in Minnetonka. Dr. Gmitro returned Clifford's call, spoke with her about her request for something to treat the phlegm problem, and prescribed the drug Liquibid, a decongestant. Dr. Gmitro wrote this prescription on the same piece of paper with the Phone Care message. He then gave this piece of paper to his nurse assistant, Susan Duffy, R.N., so she could call Clifford's pharmacy to place the prescription order.
Duffy, who had worked at Park Nicollet for 13 years and had been a nurse for 30 years, does not remember the specific telephone call she placed to Clifford's pharmacy. However, information about the call is contained in an entry to Clifford's computer chart. This information was entered at 4:35 p.m. on June 17. After entering the information, Duffy discarded the paper with Dr. Gmitro's handwritten prescription. The computer chart entry states that dr. gmitro called and talked to doris, a prescription for liquibid #60 ii bid was called into geritom pharmacy and it will be delivered to [Clifford's apartment building].
In essence, the entry reflects a prescription for 60 tablets of Liquibid, to be taken two at a time, twice a day, with no indication of any authorization for refills.
Respondent, Geritom Med, Inc., is the pharmacy to which Duffy telephoned Clifford's prescription. Geritom is a "closed-door" or "dispensing" pharmacy, meaning it primarily takes orders for prescriptions over the telephone and then delivers the prescriptions directly to patients. It serves developmentally disabled, mentally ill, and mentally retarded patients living in group homes and elderly patients living in senior apartments. Geritom pharmacist Daniel Sander Lee, Jr. answered Duffy's call and recorded the prescription on a telephone prescription form normally used by Geritom. Lee does not have any independent memory of Duffy's call. The prescription form contains the following information (italics indicate Lee's writing):
NAME: Doris Cifford [sic]
ADDRESS: 5/8/15 [Clifford's date ...