HOUSTON – A panel for the Court of Appeals for the First District of Texas on April 16 reversed a trial court judgement in favor of a plaintiff who alleged a negligent prescription filled at a Walgreen’s store resulted in the highway death of his son.
“Walgreen contends that the trial court erred in denying their motion to dismiss the Hausers’ claims because they failed to serve Walgreen with an adequate expert report. We reverse and remand,” the court brief stated.
In July 2015 Alexander Hauser presented a prescription for clonazepam an anxiety drug to a Walgreen store in Houston. The prescription was written by a doctor in Oregon who had passed away approximately one week before Hauser presented the prescription.
On October 5, 2015 Hauser refilled the prescription obtaining 60 pills. Later that day he overdosed after taking all the pills. His father John Hauser rushed him to Memorial Hermann Katy Hospital where while awaiting emergency treatment, the son fled the emergency room and was killed on a nearby highway after being struck by a car.
“The Hausers initially sued Memorial Hermann for failing to adequately supervise Alex (Hauser), but they dismissed their claims against Memorial Hermann and added Walgreen, alleging that it had negligently filled a prescription written by an out-of-state-physician without first verifying that the prescribing doctor had a valid Drug Enforcement Administration (DEA) registration,” the brief explained.
The hospital moved for dismissal of the case and was subsequently dismissed from the suit leaving Walgreen the sole defendant.
On March 16, 2018, John Hauser served Walgreen an expert report by Terry Seaton, a pharmacist. The report said the prescription would not be considered valid as it had come from an out-of-state doctor (Oregon) who had passed away a week before the prescription was filled. The doctor’s office should have been consulted, the report added.
Thus, the report concluded, the prescription was unlawfully filled by Walgreens pharmacy leading to the young man’s death.
Another expert report produced by Dr. George Glass for the plaintiffs alleging causation was filed as part of the suit against the hospital, but before Walgreen was sued.
Attorneys for Walgreen challenged the report and filed a motion for dismissal of the suit. In February of 2019 a trial court denied Walgreen’s motion to dismiss.
Walgreen’s appealed.
“The only place that Dr. Glass’s expert report can be found in the appellate record is attached to Memorial Hermann’s February 9, 2017 motion to dismiss and the Hauser April 3, 2017 response to that motion, both of which were filed well before Walgreen was sued on October 3, 2017,” the opinion concluded.
The court concluded Hauser had 120 days after a response from Walgreen's in November of 2017 to supply the store with Dr. Glass’s report, which he did not do.
“Having never served or even mentioned Dr. Glass’s report in connection with Walgreen’s motion to dismiss, Hauser cannot rely on it now,” the opinion stated.
The court panel concluded the plaintiff could not show causation between Walgreen’s alleged negligence and the young man’s death and rejected the plaintiff’s argument that Glass’s report demonstrated causation.
The trial court judgement to deny Walgreen’s motion to dismiss was reversed and remanded for further consideration.