STUART, Justice.
Michelle D. Morgan appeals the summary judgment entered by the Jefferson Circuit Court in favor of Publix Super Markets, Inc., on Morgan's claim alleging a violation of the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala.Code 1975 ("the AMLA"). We reverse and remand.
On December 19, 2010, Morgan went to the pharmacy at the Publix grocery store at 7272 Gadsden Highway in Trussville to
After approximately two weeks, Morgan returned to the Publix pharmacy to fill another prescription. Megan Locklear, the assistant pharmacy manager, approached Morgan at that time and told her that her last amlodipine refill had accidentally been partially filled with furosemide. Locklear further told Morgan that the pharmacy could not account for approximately 10 or 12 furosemide pills and gave Morgan the identification number printed on the furosemide pills. After returning home, Morgan discovered approximately two furosemide pills among the pills remaining in her amlodipine refill. Locklear subsequently telephoned Morgan, told her not to take any of the pills, and offered to refill the prescription. Morgan instead transferred the prescription to a different pharmacy and disposed of the remaining pills.
Morgan thereafter consulted with her primary-care doctor, a dermatologist, and an allergist regarding the symptoms that she began experiencing after receiving the December 19, 2010, refill from the Publix pharmacy. She testified in a subsequent deposition that the hives and facial swelling went away fairly quickly after taking Benadryl and undergoing a steroid treatment; however, she also testified that it took almost a year and microdermabrasion treatments before the hyperpigmentation and scales were fully resolved.
On October 5, 2011, Morgan sued Publix, alleging that she had sustained injuries as a result of the pharmacy's negligent issuance of the wrong medication. In its answer, Publix denied causing Morgan's injuries, asserted that her lawsuit was governed by the AMLA, and denied breaching any applicable standard of care. Following the close of the discovery period set forth by the trial court, Publix moved for a summary judgment, arguing that Morgan could not meet her burden of proof under the AMLA because she had not identified any expert witness who was qualified to testify that the Publix pharmacist who filled the prescription had breached the applicable standard of care. Morgan opposed the motion and, while acknowledging that her claim was governed by the AMLA, argued that a pharmacy's negligence in dispensing the wrong medication was so apparent that a layperson could understand it without the assistance of expert testimony. On December 14, 2012, the trial court conducted a hearing on Publix's summary-judgment motion, and, on January 3, 2013, it granted the motion and entered a summary judgment in favor of Publix, holding that Publix had established
Morgan argues that the trial court erred by entering a summary judgment in favor of Publix on her claim against it. We review this argument pursuant to the following standard:
Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).
As an initial matter, we note that there is no dispute that the AMLA governs this action. The AMLA does not specifically provide that it applies to pharmacists; however, in Cackowski v. Wal-Mart Stores, Inc., 767 So.2d 319, 324-25 (Ala. 2000), this Court held that pharmacists were included within the definition in the AMLA of "other health-care providers," see § 6-5-481(8), Ala.Code 1975, to which the AMLA applies:
Under the AMLA, the plaintiff has "the burden of proving by substantial evidence that the health-care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health-care providers in the same general line of practice ordinarily have and exercise in a like case." § 6-5-548(a), Ala. Code 1975. To successfully carry this burden, the plaintiff must prove (1) the appropriate standard of care, (2) the health-care provider's deviation from that standard, and (3) a proximate causal connection between the health-care provider's act or omission constituting the breach and the injury sustained by the plaintiff. Giles v. Brookwood Health Servs., Inc., 5 So.3d 533, 549 (Ala.2008). Moreover, establishing the applicable standard of care and the alleged breach of that standard of care "ordinarily" requires expert testimony from a "similarly situated health-care provider," as that term is defined in § 6-5-548. Holcomb v. Carraway, 945 So.2d 1009, 1012 (Ala.2006). Although Morgan identified two physicians she might call to give expert testimony, Publix correctly argues that, because those physicians are not pharmacists, they are not qualified to give expert testimony regarding the standard of care applicable to pharmacists and whether that standard of care was breached in this case. Accordingly, Publix argues, the summary judgment entered by the trial court was appropriate because, it says, Morgan cannot prove her case, thus entitling Publix to a judgment as a matter of law.
Morgan concedes that the AMLA applies to her claim against Publix and that expert testimony from a similarly situated health-care provider is typically needed to prove AMLA claims. However, she argues that her claim falls within the narrow class of AMLA claims for which no expert testimony is needed because, she argues, Publix's lack of care in partially filling her amlodipine prescription with the wrong medication "is so apparent as to be within the comprehension of the average layman and thus requires only common knowledge and experience to understand it." Rosemont, Inc. v. Marshall, 481 So.2d 1126, 1129-30 (Ala.1985). In support of her argument, Morgan cites cases from other jurisdictions making similar holdings. See, e.g., Bender v. Walgreen Eastern Co., 399 N.J.Super. 584, 591, 945 A.2d 120, 123 (2008) ("We are unable to distinguish the error of substitution in this case — a pharmacist's filling a prescription with a drug other than the one prescribed — from the errors our courts have found sufficiently careless to be `readily apparent to anyone of average intelligence and ordinary experience.' [Estate of] Chin [v. Saint Barnabas Med. Ctr.], 160 N.J. [454,] 469-70, 734 A.2d 778 [(1999)] (internal quotations omitted). The deviation by a pharmacist who provides a drug different than the one prescribed is as clear as the deviation of a dentist who pulls the wrong tooth."), and Walter v. Wal-Mart Stores, Inc., 748 A.2d 961, 972 (Me.2000) ("The negligence of the pharmacist and the harmful results [of filling a prescription with the wrong drug] were sufficiently obvious to be within the common knowledge of a lay person. It does not take an expert to know that filling a prescription with the wrong drug and failing to take the steps in place in that pharmacy to check for the wrong drug is negligence.").
In countering Morgan's argument, Publix does not directly dispute that a pharmacist's error in filling a prescription
778 So.2d at 811. The petitioner specifically argued to this Court that, because the plaintiffs had not presented expert testimony and because their claim did not fall
Publix nevertheless urges us not to do so because, it argues, the exception to the rule that expert testimony is required in an AMLA case is premised upon the doctrine of res ipsa loquitur and, Publix further argues that doctrine is inapplicable to the present case. In Kmart Corp. v. Bassett, 769 So.2d 282, 286 (Ala.2000), we explained the doctrine of res ipsa loquitur as follows:
Publix argues that it would be inappropriate to apply the doctrine of res ipsa loquitur in this case because, it says, Publix did not have full management and control of the medication it ultimately provided Morgan; it is possible, Publix argues, that a manufacturer or distributor could have provided it with the commingled amlodipine and furosemide. We first note that Publix's hypothetical is belied by the evidence in the record indicating that Publix discovered the problem with Morgan's refill and that a Publix pharmacist told Morgan that the Publix pharmacy at which she had had the prescription refilled could not account for approximately 10 or 12 furosemide pills. Regardless, however, this Court recognized in Ex parte HealthSouth that the doctrine of res ipsa loquitur was not the only foundation for the exception to the expert-testimony rule in an AMLA case, stating:
851 So.2d at 40. Thus, courts might apply the exception to the expert-testimony rule in AMLA cases where the doctrine of res ipsa loquitur does not apply if the exception is otherwise applicable.
Returning to the instant case, we have previously stated that "`[p]rescription drugs are likely to be complex medicines, esoteric in formula and varied in effect.'" Stone v. Smith, Kline & French Labs., 447 So.2d 1301, 1305 (Ala.1984) (quoting Reyes v. Wyeth Labs., 498 F.2d 1264, 1274 (5th Cir.1974)). For this and other reasons the law requires them to be dispensed by licensed pharmacists as opposed to simply being purchased "over the counter." Any individual who has ever had a prescription filled has a general understanding of this fact. Accordingly, we agree with the rationale set forth in Bender and Walter and hold that it is unnecessary for a plaintiff prosecuting an AMLA claim based on a pharmacy's filling his or her prescription with the incorrect medication to put forth expert testimony establishing the standard of care and a breach thereof because the want of skill or lack of care in incorrectly filling a prescription is so apparent as to be within the comprehension of the average layperson without the assistance of expert testimony.
Morgan sued Publix, asserting that she had suffered physical, mental, and emotional injuries based on its negligence in partially filling her amlodipine prescription with furosemide. Following the close of discovery, the trial court granted Publix's motion for a summary judgment, holding that Morgan was unable to prove her case because she had not identified an Alabama-licensed pharmacist as an expert witness and could not, therefore, establish a breach of the applicable standard of care as required by the AMLA. Morgan appealed, and we reverse the summary judgment entered by the trial court, holding that a pharmacy's negligence in dispensing the wrong medication is so apparent that a layperson can understand it without the assistance of expert testimony. The cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
MOORE, C.J., and PARKER, SHAW, and WISE, JJ., concur.