On January 14 the Texas Supreme Court will hear argument in an appeal that asks the question, When is a pharmacist not a pharmacist?  The appeal is from a Texas Court of Appeals decision that answered the question this way:  When the pharmacist is filling a physician’s bulk order rather than for a specific patient.

Here’s how it came up.  Stacey Miller was diagnosed with Hepatitis C.  Dr. Tan made weekly injections of the antioxidant supplement lipoic acid, a compounded drug.  After nine weeks something went very wrong, and Stacey was hospitalized for several weeks and left blind in both eyes.

Stacey sued the pharmacy company that produced and distributed the compounded drug and, apparently, also the individual pharmacists who did the compounding.  The defendants moved to dismiss on the grounds that Stacey had failed to meet the requirement of the Texas Medical Liability Act (TMLA) that a plaintiff suing a pharmacist (or any other health care provider) on a health care liability claim must file an expert report.

The trial court sided with Stacey and rejected the defendants’ argument.  On appeal, the Texas Court of Appeals affirmed, ruling that a pharmacist is not “dispensing” drugs, as contemplated by the TMLA, when the pharmacist provides drugs on a bulk basis rather than for a specific person.

The outcome of the case is important to pharmacies and pharmacists not only because of the expert study requirement, but also because the TMLA imposes a cap on damages.  No wonder, then, that so many pharmacy trade associations lined up to file amicus briefs in support of the defendants.

The case is Randol Mill Pharmacy et al. v. Miller, No. 10-12-00519-CV.