TEXAS WOMAN PRESCRIBED WRONG MEDICATION FOR THREE MONTHS

Posted on : August 24, 2017
Personal Injury Medications Attorney

CAUSE NO, 416-01741-2014
Filed: 5/8/2014 9:06:32 AM

Collin County, Texas

Plaintiffs

vs.

CVS PHARMACY, INC. d/b/a

CVS/PHARMACY AND

ESTHER MUO, PHARM.D.

Defendants.

PLAINTIFFS’ ORIGINAL PETITION AND REQUEST FOR DISCLOSURE  TO THE HONORABLE JUDGE:

NOW COME AM Mrs. and Mr. collectively, the “Plaintiffs” or the in the above-numbered and styled cause, and file this, their Original Petition, complaining of Defendants, CVS Pharmacy, Inc. d/b/a. CVS Pharmacy (“CVS”) and Esther Muo, Pharm.D. (“Dr. Muo”), and for their causes of action would respectfully show the Court as follows:

I. NOTICE

On March 12, 2014, Plaintiffs gave the Defendants written notice of their claim by certified mail, return receipt requested. The Plaintiffs have otherwise, in all respects, complied with all applicable provisions of Chapter 74 of the CIVIL PRACTICE AND REMEDIES CODE.

II. INTRODUCTION

This is a medical malpractice action, arising from CVS and Dr. Muo’s negligent misfill of a potent fertility drug instead of A=-1-‘s prescribed antidepressant, for a period of three months. Plaintiffs bring this action to remedy the damages they sustained as a direct and proximate result of Defendants’ failure to use ordinary care to properly fill a medication prescribed to AMand to discover their critical medication error.

III. DISCOVERY

Plaintiffs intend to conduct discovery under Level 3 of the TEXAS RULES OF CIVIL PROCEDURE. Plaintiffs request that discovery be conducted in accordance with a discovery control plan tailored to the particular circumstances of this suit. Plaintiffs anticipate that the parties will submit an Agreed Scheduling Order for the Court’s consideration and approval.

IV. PARTIES

Plaintiffs A and B individuals, are residents of Collin County, Texas. Defendant CVS Pharmacy, Inc. d/b/a CVS/pharmacy is a corporation authorized to do business in the state of Texas and may be served with process by and through its registered agent, CT Corporation, 1999 Bryan Street, Suite 900, Dallas, Texas 75201. Defendant Esther Muo, Pharm.D. is an individual residing in McKinney, Texas, and may be served with process at her residence, 5201 Buckland Drive, McKinney, Texas 75070, or wherever she may be found.

V. VENUE AND JURISDICTION

Venue is proper in Collin County, Texas, pursuant to TEx. CIV. PRAC. & REM. CODE § 15.002, because it is the county in which all or a substantial part of the events or omissions giving rise to the claim occurred. Venue is proper in Collin County against all Defendants pursuant to TEx. CIV. PRAC. & REM. CODE § 15.005 because venue is proper against at least one Defendant and all claims and causes of action in this case arise out of the same transaction, occurrence, or series of transactions or occurrences.

The Court has subject matter jurisdiction over this case as the amount in controversy exceeds the minimum jurisdictional limits of the Court.

VI. FACTS

Prior to this incident, AM TM was a competent and hardworking wife, mother, and employee. She had a thriving career at Hexter-Fair title company, working her way from an entry-level secretary to escrow officer over the course of a decade. Her supervisor called A her “right arm” and a “shining star” because AM was such a capable, organized, and efficient employee. In 2010, Mrs. Tleft Hexter-Fair. In 2011, she began full-time employment as a short-sale negotiator, earning a higher annual salary, at Chase Bank.

AM Ta history of anxiety, depression, and bipolar disorder which she manages with pharmacotherapy.

On May 11, 2012, AM ‘s psychiatrist, Dr. Frank Lane, prescribed a thirty-day supply of 50mg ClomiPRAMINE Hydrochloride (“ClomiPRAMINE”) tablets to be filled at CVS Store 8321—the same pharmacy theused many times before to fill prescriptions. Two refills also accompanied this anti-depressant prescription.

CVS Store 8321 received the ClomiPRAMINE Hydrochloride prescription, but never filled it. Instead, CVS Store 8321 pharmacist, Esther Muo, misfilled a thirty-day prescription of ClomiPHENE Citrate (“ClomiPHENE”). ClomiPHENE, a fertility drug, is indicated for the treatment of ovulatory dysfunction in women desiring pregnancy.

Upon information and belief, Esther Muo, along with CVS Store 8321 pharmacy technicians (the “Pharmacy Technicians”), were agents of CVS Pharmacy, Inc. d/b/a CVS/pharmacy acting within the course and scope of their employment when they misfilled the ClomiPRAM1NE prescription and dispensed ClomiPHENE instead.

Remarkably and inexplicably, Dr. Muo and the Pharmacy Technicians misfilled the prescription with ClomiPHENE Citrate not once, but three times: May 11, June 4, and July 5, 2012.

Several factors should have alerted CVS, Dr. Muo, and the Pharmacy Technicians of the pharmaceutical error. First, the prescribing physician was AMs longstanding psychiatrist, not a gynecologist. CVS not only failed to read the right prescription, but also failed to analyze Mrs. Ts patient profile and review her recent history of prescriptions as required by 22 TEX. ADMIN. CODE § 291.34(c)(1)-(4).

Next, ClomiPRAMINE and ClomiPHENE have Tall Man Lettering, which indicates they look and sound like other drugs. The purpose of Tall Man Lettering, promulgated by the Institute for Safe Medication Practices, is to reduce the risk of medicine selection errors by health professionals. Thus, the Tall Man Lettering should have triggered a duty for CVS, Dr. Muo, and the Pharmacy Technicians to confirm the veracity of the prescription before giving it to AM.

Also, ClomiPHENE is a fertility drug and ClomiPRAMINE is an anti-depressant; these two drugs treat unrelated conditions. A simple consultation with Mrs. TM would have clarified the obvious mistake about to be made. Neither AM nor BTM were counseled by Dr. Muo or CVS staff on this drug’s intended use or expected outcome as mandated by 22 TEX. ADMIN. CODE § 291.33(c)(1)(A)-(C). She had no reason to believe that she was receiving a potent fertility drug for the three months it was dispensed by CVS. Additionally, the ClomiPHENE Citrate came in a five-pill flat pack, intended for singular distribution. The bolded instructions on the exterior state, “1 tablet daily for 5 days.” Yet CVS personnel placed its own thirty-day dosage instruction sticker on top of the manufacturer’s instruction.

Importantly, CVS has procedural mechanisms to catch potential pharmaceutical errors called hard-stops. A hard-stop is an alert that must be overridden by a licensed pharmacist entering their initials, a code or pin and also sometimes a reason to justify the override of the hard-stop. Thus when filling AM’s ClomiPHENE medication in excess of the manufacturer’s dosage instructions, there must have been affirmative action taken by Dr. Muo or the Pharmacy Technicians to override this safety precaution.

Finally, the dosage of ClomiPHENE given to AM was extreme; she was given a four-month supply every thirty days. According to the manufacturer’s instructions, ClomiPHENE is prescribed for ingestion no more than five days each month, for a maximum of sixth months. AM Twas given 90 tablets of C1omiPHENE in three months, the equivalent of a twelve-month supply of this drug.

Thinking the prescription was an anti-depressant, AM unknowingly took the ClomiPHENE daily according to her psychiatrist’s and the CVS’s instructions. Within weeks of taking this drug, she experienced migraines, dizziness, fevers lasting up to three weeks, vomiting, fatigue, severe back pain, hives, itching, menorrhagia, apathy, and severe mood swings. Mrs. TM initially thought she was suffering from West Nile Virus. She consulted with her primary physician about these persistent symptoms, but he could not determine their cause. Mrs. TM also noticed a sharp decline in her cognitive and physiological
functioning in the workplace. In the summer of 2012, she suffered from several panic attacks and splitting headaches, interfering with her ability to perform daily tasks. Once praised by superiors for her sharp mind and intellect, AM was struggling to remember basic information, such as names and numbers of her longtime friends and co-workers. She could not remember how to use basic and routine functions on a cell phone or computer. In July 2012, Mrs. TM fainted at work and was taken to a local emergency room. After this episode, she took a leave of absence from Chase Bank and was ultimately terminated in December 2012.

CVS, Dr. Muo, and the Pharmacy Technicians had multiple opportunities to prevent and to mitigate this error in May, June, July, August, and September 2012. Nonetheless, CVS never discovered this flagrant error nor reported it to Mr. or Mrs. IMMI. AIM stopped taking the ClomiPHENE Citrate in August 2012 because her refills expired. On September 22, 2012, CVS Store 8321 sent Dr. Lane a request for refill of the thirty-day ClomiPHENE Citrate prescription. Dr. Lane replied: “I don’t prescribe this!! Are you sure you have the correct med? . .. Or doctor?” He received no response.

When A had a follow-up visit with Dr. Lane in October 2012, she described all of the physical, hormonal, and psychological changes she had experienced over the past months while unknowingly taking ClomiPHENE Citrate. Dr. Lane carefully reviewed her prescriptions and discovered that AM had been mistakenly taking the ClomiPHENE as if it was the ClomiPRAMINE he prescribed. He immediately informed the of CVS’s mistake. He also called a poison control center and a local emergency room to determine proper treatment. CVS, Dr. Muo, and the Pharmacy Technicians never called nor wrote Dr. Lane in response to his impelling fax. Even more appalling, neither CVS, Dr. Muo, nor the Pharmacy Technicians informed AM or TM of their mistake.

As a result of this toxic ClomiPHENE overdose and abrupt cessation, Mrs. TM has experienced substantial cognitive impairment, including significant memory loss, slurred speech, technical confusion, decreased processing speed, and inability to organize or express her thoughts. Her cognitive abilities are now in the borderline range of functioning and inhibit her from working, driving, cooking, parenting, and being left unsupervised for long periods of time. Prior to this catastrophe, AM and her husband were trying to get pregnant with their second child. Because of all of the complications and impairments deriving from the ClomiPHENE overdose, it is likely that their desire for another child will never become a reality.

The toxic dosage of ClomiPHENE Citrate had a dramatic, hyperstimulating effect on her ovaries: they enlarged three times their normal size, developed multiple cysts, and a nodule. As a result of the hyperstimulation, she underwent a bilateral ovarian cystectomy, an excision of right ovarian lesion, and excision of an ovarian nodule on April 16, 2013. The cyst removal caused another abrupt decline in her estrogen levels. Approximately six weeks after the removal of these cysts, Mrs. experienced her first seizure in June 2013. Additional seizure events have since occurred on August 3, 2013 and September 6, 2013.

Her altered hormonal status will continue to have a long-lasting influence. Because of the extreme overdose, her risk of cervical, uterine, ovarian, and breast cancer has significantly elevated and must be monitored at least annually. AM and her family must now live with the horror of not knowing her future risk of cancer.

The extent of AM Tinjury is not simply physical. The treatment, surgery, and pain endured as a result of CVS and Esther Muo’s negligent conduct has disrupted her personal and professional life. Mrs.as a hardworking, active mother and wife. She is no longer able to enjoy activities and fully interact with her husband and son, such as going to his soccer games and school activities. Her injuries have interfered with her ability to maintain the house. She no longer cooks, cleans, drives, or pays bills. Both AM and her husband have modified their activities and responsibilities to accommodate her condition, and this has had a detrimental effect on their relationships with each other, family members, and friends. Mr. has reduced his work hours to accommodate for her medical needs and the day-to-day care of their son.

AM’s cessation of the ClomiPHENE medication was not the cessation of the medication’s effect. The manufacturer’s packet insert states the drug is of “considerable pharmacologic potency.” It continues: “The toxic dose in humans is not known.” AM ingested a dose so high that it has not been tested in humans or animals. Accordingly, her physicians have taken a “wait and see” approach as to the long-term effects of AM’s toxic overdose, especially cancer.

VII. CAUSES OF ACTION

COUNT 1: MEDICAL NEGLIGENCE

CVS Pharmacy, Inc. d/b/a CVS/Pharmacy

Plaintiffs incorporate by reference and re-allege all preceding sections of this Petition and would further show that CVS Pharmacy, Inc. d/b/a CVS/pharmacy is liable for medical negligence pursuant to Chapter 74 of the TEX. Civ. PRAC. & REM. CODE. Plaintiffs will show the Court that the personal injury and damages suffered by Plaintiffs was a direct and proximate cause of the negligence and wanton disregard of CVS. CVS failed and refused to afford AM T the minimal degree of medical attention and care she so rightly deserved. CVS is liable to Plaintiffs for numerous negligent acts, including but not limited to, the following:

  • In failing to do that which a pharmacy and pharmacist of ordinary prudence would have done under the same or similar circumstances or doing that which a pharmacy and pharmacist of ordinary prudence would not have done under the same or similar circumstances;
  • In failing to provide adequate medical care as would a pharmacy and pharmacist of ordinary prudence;
  • In failing to implement and/or follow reasonably prudent procedures to assess, remedy and/or prevent injury to AM TM;
  • In failing to assess or evaluate the prescription dispensed to Mrs. given her prescription history;
  • In failing to properly fill As prescribed ClomiPRAMINE
    medication in May 2012 by filling ClomiPHENE instead;
  • In failing to properly fill ATs prescribed ClomiPRAMINE
    medication in June 2012 by filling ClomiPHENE instead;
  • In failing to properly fill ATs prescribed ClomiPRAMINE
    medication in July 2012 by filling ClomiPHENE instead;
  • In failing to properly label AM Ts prescribed ClomiPRAMINE
    medication;
  • In failing to heed the procedural safeguards and hard stops related to misfilling ATs prescribed C1omiPRAMINE medication with
    ClomiPHENE;
  • In failing to accurately dispense AM ‘Is prescribed C1omiPRAMINE
    medication;
  • In failing to counsel AM 1on the dispensed drug’s intended use or
    expected outcome;
  • In failing to alert AM or B. 1of its mistake in filling the wrong prescription;
  • In failing to properly train its pharmacists and pharmacy technicians; and
  • In failing to supervise its pharmacists and pharmacy technicians.

Esther Muo, Pharm.D.

Plaintiffs incorporate by reference and re-allege all preceding sections of this Petition and would further show that the Defendant Esther Muo, Pharm.D. is liable for medical negligence pursuant to Chapter 74 of the TEX. Civ. PRAC. & REM. CODE. Plaintiffs will show the Court that the personal injury and damages suffered by Plaintiffs was a direct and proximate cause of the negligence and wanton disregard of Dr. Muo. Dr. Muo failed and refused to afford AM the minimal degree of medical attention and care she so rightly deserved. Dr. Muo is liable to Plaintiffs for numerous negligent acts, including but not limited to, the following:

  • In failing to do that which a pharmacy and pharmacist of ordinary prudence would have done under the same or similar circumstances or doing that which a pharmacy and pharmacist of ordinary prudence would not have done under the same or similar circumstances;
  • In failing to provide adequate medical care as would a pharmacy and pharmacist of ordinary prudence;
  • In failing to implement and/or follow reasonably prudent procedures to assess, remedy and/or prevent injury to AM1-;
  • In failing to properly input AMETs correct prescription into a
    computer;
  • In failing to assess or evaluate the prescription given to for Mrs. given her prescription history;
  • In failing to properly fill AM Ts prescribed C1omiPRAMINE
    medication in May 2012 by filling ClomiPHENE instead;
  • In failing to properly fill ATs prescribed ClomiPRAMINE
    medication in June 2012 by filling ClomiPHENE instead;
  • In failing to properly fill AM Ts prescribed ClomiPRAMINE
    medication in July 2012 by filling ClomiPHENE instead;
  • In failing to perform a review ensuring that A’s ClomiPRAMINE prescription was filled accurately;
  • In failing to properly label AM Ts prescribed ClomiPRAMINE
    medication;
  • In failing to heed the procedural safeguards and hard stops related to misfilling As prescribed ClomiPRAMINE medication with
    CIomiPHENE;
  • In failing to perform a drug utilization review of ATM’s
  • ClomiPRAMINE prescription before dispensing ClomiPHENE instead;
  • In failing to correct the misfilled ClomiPRAMINE prescription before dispensing ClomiPHENE to
  • In dispensing an inaccurately filled prescription to AM TM;
  • In failing to accurately dispenseprescribed ClomiPRAMINE
    medication;
  • In failing to counsel AM on the dispensed drug’s intended use or
    expected outcome; and
  • In failing to alert AM or B its mistake in filling the wrong prescription.

COUNT 2: GROSS NEGLIGENCE

CVS Pharmacy, Inc. d/b/a CVS/Pharmacy

Plaintiffs incorporate by reference and re-allege all preceding sections of this Original Petition and further allege that their injuries resulted from CVS Pharmacy, Inc. d/b/a CVS/pharmacy’s grossly negligent conduct. Plaintiffs have suffered damages as a direct and
proximate result of CVS’s gross negligence. In additional to actual damages, Plaintiffs seek exemplary damages for CVS’s gross negligence under TEX. CIV. PRAC. & REM. CODE § 41.003(a).

Esther Muo, Pharm.D.

Plaintiffs incorporate by reference and re-allege all preceding sections of this Original Petition and further allege that their injuries resulted from Esther Muo, Pharm.D.’s grossly negligent conduct. Plaintiffs have suffered damages as a direct and proximate result of Dr. Muo’s gross negligence. In additional to actual damages, Plaintiffs seek exemplary damages for Dr. Muo’s gross negligence under TEX. CIV. PRAC. & REM. CODE § 41.003(a).

COUNT 3: NEGLIGENT SUPERVISION

  • Plaintiffs incorporate by reference and re-allege all preceding sections of this Original Petition and allege that CVS Pharmacy, Inc. d/b/a CVS/pharmacy was negligent in its supervision of Dr. Muo its Pharmacy Technician employees. CVS breached its duty to Plaintiffs in failing to train and supervise its employees, which directly and proximately caused harm to the Plaintiffs. CVS is liable to Plaintiffs for numerous negligent acts, including but not limited to, the following:
  • In failing to train its pharmacists and technicians proper procedures for filling a dispensing medication to patients, including AM
  • In failing to supervise its pharmacists and technicians during the filling and dispensing of medication to patients, including AM
  • In failing to implement policies and procedures to mitigate pharmacy error;
  • In failing to enforce compliance with the Texas State Board of Pharmacy laws/regulations; and
  • In failing to investigate whether its pharmacists and technicians had properly filled AM’s ClomiPRAMINE prescription.

COUNT 4: RESPONDEAT SUPERIOR

Plaintiffs incorporate by reference and re-allege all preceding sections of this Original Petition and allege that CVS Pharmacy, Inc. d/b/a CVS/pharmacy was vicariously liable for its pharmacy employees, including Esther Muo, Pharm.D. and the Pharmacy Technicians at CVS Store 8321 that proximately caused the incident made the basis of this lawsuit and Plaintiffs’ resulting injuries and damages.

At all times relevant herein, Dr. Muo and the Pharmacy Technicians at CVS Store 8321 were under the employ of Defendant CVS Pharmacy, Inc. d/b/a CVS/pharmacy, and they were authorized by CVS Pharmacy, Inc. to fill and dispense patient prescriptions. At the time of the incident made the basis of this lawsuit, Dr. Muo and the Pharmacy Technicians at CVS Store 8321 were acting within the scope of their employer’s business. Under the theory of respondeat superior, Defendant CVS Pharmacy, Inc. is therefore liable for the injuries and damages suffered by Plaintiffs as a result of the negligence of their employees, Dr. Muo and the Pharmacy Technicians at CVS Store 8321.

VIII. PROXIMATE CAUSATION

Each of these acts and omissions, whether taken singularly or in combination, constituted negligence by Defendants Esther Muo, Pharm.D. and CVS Pharmacy, Inc. d/b/a CVS/pharmacy, which is the proximate cause of the incident made the basis of this suit and the injuries and damages sustained by Plaintiffs. Defendants, individually or in combination, proximately caused A’s toxic overdose by misfilling an anti-depressant prescription with a potent fertility drug for approximately three months.

LOSS OF CONSORTIUM

Plaintiffs would further show that they were married at all times relevant to this lawsuit and as a direct and proximate result of the negligence of Defendants as described above, there has been a substantial impairment of the marital relationship between AM and BIM T Accordingly, the Plaintiffs have sustained a loss of the affection, solace, comfort, companionship, society, and assistance that they previously received from each other, in an amount which exceeds the minimal jurisdictional limits of the court.

DAMAGES

As a result of the incident made the basis of this lawsuit, Plaintiffs sustained the following damages which exceed the minimum jurisdictional limits of the court for which they seek reimbursement:

  1. Past and future medical expenses;
  2. Past and future pain and suffering;
  3. Past and future impairment and disfigurement;
  4. Past and future mental anguish;
  5. Fear of cancer;
  6. Past lost wages and future loss of earning capacity; and
  7. Loss of Consortium.

Plaintiffs seek damages in excess of $1,000,000.00.

EXEMPLARY AND PUNITIVE DAMAGES

The Defendants acts or omissions described herein, when viewed from the standpoint of the Defendants at the times(s) of their act(s) or omission(s), involved an extreme degree of risk, considering the probability and magnitude of the potential harm to Plaintiffs and others. Defendants had actual, subjective awareness of the risk involved in the above-described acts or omissions, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of the public in general and Plaintiffs in particular. Based on the facts stated herein, Plaintiffs request that exemplary or punitive damages be awarded to Plaintiffs from Defendants, and each of them.

XII. REQUEST FOR DISCLOSURE

Under TEX. R. CIV. P. § 194, Plaintiffs request that Defendants disclose, within 50 days of the service of this request, the information or material described in Rule 194.2.

XIII. JURY DEMAND

Plaintiffs respectfully request a trial by jury and have forwarded the appropriate fee.

XIV. PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs AM Tand B TM pray that CVS Pharmacy, Inc. d/b/a CVS/pharmacy and Esther Muo, Pharm.D. be cited to appear and answer herein, and that upon final trial hereof, Plaintiffs have and recover from Defendants judgment for all damages proved, including costs of court, pre judgment interest and interest from the date of judgment until same is paid, attorneys’ fees and costs, through trial and any appeal, and for such other and further relief, either at law or in equity, to which Plaintiffs have shown themselves justly entitled.

Respectfully Submitted

State Bar No. 02275800

M. Paige Tackett, Esq.

State Bar No. 24083935 325 N. St. Paul Street Suite 4500

Dallas, Texas 75201

(214) 953-0182

Posted in : Gregory H. Bevel

Comments are closed.