Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of September 16, 2013

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

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Randol Mill Pharmacy v. Miller, No. 02-12-00519-CV -Opinion, 02-12-00519-CV -Dissenting (Sept. 19, 2013) (Walker, J., joined by Gardner, J.; Livingston, C.J., dissents with opinion).

Held:  Because the pharmacist Appellants' act-filling a bulk phone order placed by a doctor for over twenty 30-milliliter vials of an injectable form of the antioxidant supplement lipoic acid for use in the doctor's office-does not constitute dispensing a prescription medicine as required for Appellants to qualify as a health care provider under the Texas Medical Liability Act (TMLA), the trial court did not err by denying Appellants' motion to dismiss Appellees' suit based on their failure to file a chapter 74 expert report.

Dissent:  According to definitions in the TMLA and other pharmacy-related statutes, appellants' actions in compounding the lipoic acid pursuant to the doctor's verbal order constituted dispensing of a prescription medicine despite the fact that appellants delivered the medicine to the doctor, who then administered it to Stacey Miller, rather than directly to Stacey Miller herself. Thus, appellees' claims are health care liability claims under the TMLA, and the trial court should have dismissed them for failure to file an expert report.

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