IN THE SUPREME COURT OF MISSISSIPPI NO. 2019-CA-00160-SCT SPENCER WOLFE

v. DELTA DISCOUNT DRUGS, INC.

DATE OF JUDGMENT: 12/17/2018 TRIAL JUDGE: HON. LINDA F. COLEMAN TRIAL COURT ATTORNEYS: DEREK D. HOPSON, JR. W I LTON V. BYARS, III COURT FROM W HICH APPEALED: ATTORNEYS FOR APPELLANT: COAHOMA COUNTY CIRCUIT COURT DEREK D. HOPSON, SR. DEREK D. HOPSON, JR. ATTORNEYS FOR APPELLEE: W I LTON V. BYARS, III CAROLINE C. JOHNSON NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE DISPOSITION: AFFIRMED - 03/05/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE KING, P.J., CHAMBERLIN AND ISHEE, JJ. CHAMBERLIN, JUSTICE, FOR THE COURT: ¶1. The dispositive issue in this case requires u s to determ ine whether a c l aim asserted against a pharm acy f

or allegedly mi s - f

i l l ing a prescription is subject t o the two-y ear prof essional-m alpractice statute of lim itations in Mississippi Code Sect i o n 1 5 -1-36 or the three-y ear catch-all statute of lim itations in Mississippi Code Section 15-1-49. The Circuit
Court of Coahom a County ruled that Section 15-1-36 appli e d t o S p e ncer W o lf e’s claim s against Delta Discount Drugs and granted Delta’s m otion to dism iss with prejudice becauseW o lf

e ’ s c l aim s were f

iled bey ond the two-y ear statute of lim itations f ound in Section 15-1- 36. Aggrieved, W olf

e has tim ely

appealed to this Court. Af t er review, we af

f i rm . FACTS AND PROCEDURAL HISTORY ¶2. Because this is a n appeal f rom a dism issal under Mississippi Rule of Civil Procedure 12(b)(6), we draw the f

acts f rom W olf e’s com plaint and accept them

as true. Rex Distrib. Co., Inc. v. Anheuser-Busch, LLC , 271 So. 3d 445, 447 (Miss. 2019). ¶3. In May , 2015, W olf e was b eing treated f

o r h i g h blood pressure and w as prescribed
two m illigram s of hy dralazine two tim es a day

. Som e tim e between May 20, 2 015, and May
2 7 , 2015, W o lf

e had this prescription f

illed at Delta Discount Drugs. Delta, how e v e r , allegedly m i s-f

illed W olf

e’s prescription with twenty -f ive m i lligram tablets of h y droxy zine, rather than the prescribed two m illigram tablets o f hy dralazine. Less t han a m onth later, on June 19, 2015, W o lf

e was hospitalized af

ter he had blacked out while driving. ¶4. Upon being adm itted to Northwest Mississippi Regional Medical Center, W olf e was placed under the care of Dr. Andrea Sm ith. Dr. Sm ith’s a dm ission notes indicate that W olf e had b e e n p r e scribed hy dralazine f or high blood pressure but t hat he had received hy droxy zine—an anxiety and depression m edication. Furtherm ore, the doctors explained to W o lf e t hat his m edical com

plications were caused by the incorrect m edication. ¶5. On Novem

b e r 4, 2016, W olf

e sent Delta a not i ce-of

-claim letter. This notice-of -claim letter indicated that W olf

e i ntended to sue Delta f

or “pharm aceutical negligence a n d r e s ultant dam ages.” ¶6. More t han two y ears and ten m onths later, on May , 1, 2018, W o lf e f iled suit against

2Delta i n the C i r c u i t C ourt of Coahom a County

. W olf e couched his com

plaint in term s of “plain and sim

ple negligence.” W olf

e, h owever, attached two exhibits t o his com plaint: the
Novem ber 4 , 2016 notice-of

-claim le t t e r and W olf

e’s “certif i cate of consultation required in m edical m alpractice actions. ” W o l f e a sserted claim s of negligence per se, general negligence, negligent m isrepresentation, negligent inf liction of em otional d istress and gross negligence against Delta f o r allegedly

m is-f i lling W olf

e ’ s prescription. ¶7. On June 8, 2018, Delta f iled a m otion to dism i ss with prejudice, averring that W olf e’s suit w as tim e barred under t h e a p plicable two-y ear lim itations period in Section 15-1-36. Delta contended that two y ears had passed since the alleged negligent act because W olf e’s

c l a i m w o u ld have accrued n o later than June 19, 2015—when Dr. Sm ith d iscovered an d explained to W o lf

e that he was prescribed hy dralazine but had received hy droxy zine. ¶8. A hearing w a s h e l d a n d , o n N o vem ber 28, 2 018, t he circuit court granted Delta’s

m otion to dismi s s a f

t e r determ ining that the two-y ear statute of lim itations f or m edicalm alpractice actions applied to W olf e’s claim s. The trial court reasoned that “the heart of Mr.
W o lf e ’ s c om plaint goes to those services perf orm ed by the pharm a cist, who is the prof essional.” ¶9. W o lf

e has tim ely a

ppealed to this Court. On appeal, W olf e presents three argum ents: (1) that the trial court exceeded its judicial authority by expanding the coverage of Section
15-1-36 to in c l u d e a pharm acy ; (2) that the act W olf e com plains of c o nstitutes general negligence subject to the three-y ear statute of lim itations f ound in Section 15-1-49; and (3) that W olf e’s com plaint alleges negligent acts of Delta, independent of any a ction against the

3pharm acist. 1 W e consider one i ssue: Did the c ircuit court err by f inding Section 15-1-36 to be the applicable statute of lim itations?
STANDARD OF REVIEW ¶10. The a

pplication of a statute of lim itations raises a question of law, which is reviewed de novo. Ham m o ns v. Navarre , 252 So. 3 d 9 , 13 (Miss. 2018). Likewise, “ [ a ] mo t i o n to dism i s s f o r f a i lure to state a c laim under Rule 12(b)(6) raises an i ssue o f law which we review de novo .” City of V i cksburg v

. William s , 191 So. 3d 1242, 1244 ( Miss. 2016) (citing
Poindexter v. S. United F ire Ins. Co. , 838 So. 2d 964, 966 ( Miss. 2003)). “The Court m ust accept the allegati o n s i n t h e com plaint as true and consider only w hether any set of f acts could support [ W o lf

e ’s] action.” I

d. (em phasis om itted) (citing Children’s M ed. Grp., P.A. v. Phillips , 940 So. 2d 931, 934 (Miss. 2006)).
ANALYSIS
I. Section 15-1-36 ¶11. Mississippi Code Section 15-1-36 provides in relevant part that

no claim in tort m ay be brought against a licensed

. . . pharm acist

. . . f or injuries

. . . arising out o f the course o f m edical, surgical or other prof essional services unless it is f

iled within (2) two y ears f r om the date th e a l l e g e d act, om ission or negle ct s hall or with reasonable diligence m ight have been f irst known or discovered. Miss. Code Ann. § 15-1-36(2) (Rev. 2019). ¶12. Wo l f

e c o n c e d e s o n appeal that m edical-m a l practice claims a s s e r t e d a g a i n s t a

1 U n d er W o lf

e’s th ird arg u m en t, h e c o n ten d s th at D elta “sh o u ld m ain tain P ro sp ectiv e D r u g U se R ev iew .” W o l f

e, h o w e v er, ack n o w led g es in h is co m p lain t an d w e e x p lain b elo w th at th e l i c e ns e d pha

r m a c i st is r esp o n sib le f

o r im p l em en tin g a n d carry i n g o u t th e P ro sp ectiv e D r u g U se R ev iew co n tem

p l ated b y th e S tate B o ard o f

P h arm acy

R eg u latio n s . 4pharm acist m ust be brought within two y ears. Additionally , W olf e conceded at the hearing in circuit court that the supervising pharm acist is u ltim ately responsible f

or d ispensing the
correct m edication. But b ecause W olf e has f iled his action a g ainst the pharm acy rather than the pharm acist, he argues that the t hree-y ear statute of lim itations f ound in Mississippi Code Section 15-1-49(1) (Rev. 2 019) applies to h is claim s. T he circuit court f ound that W olf

e’s claim s were a ll predicated on the a lleged a cts o r om issions of a pharm acist and were, theref ore, subject to the two-y ear m edical-m alpractice statute of lim itations. ¶13. This Court has explained that Section 1 5-1-36 “applies to ‘injuries o r wrongf ul death arising o ut o f t he course of m edical, surgical or other prof essional s ervices[ .]” C

rosthwait

v. S. Health Corp. of

H ouston, I nc. , 94 So. 3d 1070, 1074 (Miss. 2012) (quoting Miss. Code
Ann. § 15-1-36(1) (Rev. 2003)). “[ T]his Court [ has] recogniz e d that ‘m edical or prof essional services’ . . . include all aspects of m edical e valuation, treatm e nt, and care that involve the application of special skill or knowledge.” Id. (quoting Bell v. W . Harrison Cty. D ist. , 523 So. 2d 1031, 1033 (Miss. 1988)). ¶14. In construing S e c t i o n 1 5

- 1

- 3 6 , this Court previously noted t hat “ w ords used in a
statute s hould be given their ordinary and popular m e aning in an attem pt to glean l egislative intent f rom the statute.” Bell , 523 So. 2 d at 1033 (citing A l l g o o d v . B r adford , 473 So. 2d
402 (Miss. 1985); Roberts v. Miss. Republican Party State Exec. Com m . , 4 65 So. 2d 1050 (Miss. 1 985); Lam bert v. Ogden , 423 So. 2 d 1319 ( Miss. 1985)). Because pharm acists are explicitly included in Section 15-1-36, it is clear that the Legislature i ntended f or t o r t i ous injuries arising o ut of the course of prof essional s ervices provided by a licensed pharm acist

5be subject to a two-y ear statute of lim itations. ¶15. For the reasons discussed below, we f i nd that W olf

e’s injuries arise out of the course of prof essional services that m ay be perf orm ed only by o r t h r o u g h a licensed pharm acist. Theref ore, the circuit court p roperly determ ined t hat W olf e’s claim s w ere untim ely , having been f iled bey ond the two-y ear period f ound in Section 15-1-36. ¶16. At the outset, we note W olf e’s prior characterization of t he c laim s that he has asserted against Delta. Specif

ically , W olf

e’s notice-of

-claim letter explained that he had “no choice but to m a ke a claim f

or p h a r m aceutical negligence.” Additionally , W o lf e attached a certif i cate of consultation to his com plaint t hat explicitly acknowledged t hat such certif icate is “required in m edical m alpractice actions.” Now, W olf e argues that the shorter m edicalm alpractice statute of lim itations s h o u l d n o t a pply because he has f iled suit against the pharm acy instead of the pharm a c i s t and has couched his com plaint in term s o f “plain and sim ple negligence.” ¶17. This Court, h owever, has repeatedly pro h i b i ted the m isbranding of a claim in order
to e scape a shorter s t atute of lim itations. Esta t e o f Puckett v. Clem ent , 2 38 So. 3d 1139,
1146 (Miss. 2018); Sanderson Farm s, Inc. v. McCullough , 212 S o. 3d 69, 80 (Miss. 2017);
Howard v. Wilson , 62 So. 3d 955, 956 (Miss. 2011). This C ourt has explained that “there

can be no escap e f

r om the bar of statute of lim itations

. . . b y the m ere ref usal to sty le the

cause brought in a recognized statutory category and thereby circum vent prohibition of the
statute.” Estate of Puckett , 238 So. 3d at 1146 (internal quotation m a rks om itted) (quoting City of Mound Bayou v. Johnson , 562 So. 2 d 1212, 1215 (Miss. 1990)). Despite W olf e’s

6current charact e r ization of his claim s against Delta, the principle undergirding t hese prior

decisions applies with equal f orce here.
A. Prescription medication may be dispensed through o nly a licensed pharmacist. ¶18. M ississippi law def i nes the practice of pha r ma c y i n p a r t a s “ i n t e r p r e t i n g a n d evaluating prescriptions;

. . . dispensing and labeling of drugs . . . ; . . . selecting drugs;

. . . [ and] supervising supportive personnel and s u ch other a c ts, services, operations or transactions necessary or incidental to the conduct of the f oregoing.” Miss. Code Ann. § 73- 21-73(bb) (Rev. 2017). 2 F urtherm ore, Mississippi law requires that “[ a ] l i c e n s e f or the practice o f pharm a cy shall be obtained by all persons prior to their engaging i n the practice of pharm acy .” Miss. Code Ann. § 73-21-83(2 ) ( Rev. 2017). It is a c rim inal of f ense to
engage in the practice of pharm acy without f i rst o btaining a license. Miss. Code Ann. § 97- 23-43 (Rev. 2014). ¶19. Moreover, pharm a cists are responsible f o r all activities of a phar

m a c y t e c h nician. The Mississippi Board of P harm acy r e g u l ations provide that “where t he services of pharm acy technicians are u tilized in the preparation of a drug f or delivery to a patient, a pha r m a c i s t shall be present and personally supervise the pharmacy technician and shall b e responsible for the correct preparation and delivery of the drug t o the patient .” 30 Miss. Adm in. Code
Pt. 3001, Art. V III(1)(D) ( am ended Jan. 14, 2017) ( em p h a s i s added), W estlaw. The Pharm acy regulations also require t hat a p harm acist utilize a “ P r o s p e c tive Drug Use

2 P e r th e 2 0 1 9 su p p lem en t, th is p ro v isio n is u n d er su b sectio n ( d d )

. S ee M iss. C o d e A n n . § 7 3 -2 1 -7 3 ( d d ) (S u p p . 2 0 1 9 ). 7Review[

. ]” 30 Miss. Adm in. Code Pt. 3 001, Art. VIII(3) (2014). Specif ically , this program requires that “[ b ]ef

ore a prescription is dispensed, delivered, or d istributed, a pharm a c ist shall review the patient record and e a c h P r e s cription Drug Order presented f or d ispensing

. . . .” 3 0 M iss. Adm in. Code Pt. 3001, A rt. VIII(3) (2014) (em phasis added). A dditionally , the Pro s p e c t i v e Drug Use Review program requires that “ the pharmacist s hall take appropriate steps t o avoid or resolve” any p roblem discovered during the prospective druguse review. 30 Miss. Adm in. Code Pt. 3001, Art. VIII(3) (2014) (em phasis added). ¶20. W e also note that only a licensed pharm acist m ay obtain a p h a r m acy perm it, which is required bef

ore a f acility c an provide pharm acy service s . The State Board o f Pharm acy regulations require that “ [ e]very b u s i n e s s o r l o cation

. . . where

. . . pharm a cy services are provided shall obtain a perm it f rom the Mississippi Board of Pharm acy .” 3 0 Miss. Adm in. Code Pt. 3001, Art. VI(1) (am e nded July 29, 2 018), W estlaw. A pharm acy perm it “ shall not be issued or renewed o n the application of a ny person unless su c h p e r s on be a p harmacist licensed in this state.” 30 Miss. Adm in. Code Pt. 3001, Art. VI(7)(2018) (em phasis added). ¶21. The crux o f W olf e’s claim s i s t h a t D e l t a , through one o f its em ploy ees, f

ailed to properly f

ill W olf e ’ s p r e s c r i ption. Because the alleged act t hat W olf e com plains of necessarily occurred during t he course of prof essional services provided by a licenced pharm acist, we f

ind that W o lf

e’s claim s are s ubject to the two-y ear statute o f l i mi t ations governing m edical-m alpractice actions. Said dif f erently , W olf

e’s alleged injury

arises out of the course of prof

essional services specif

ic a l l y c ontem

plated b y Section 15-1-36—a licensed pharm a cist engaged in t h e p r a c t ice of pharm acy . Theref ore, the statute of

8lim itations f or m edical-m a lpractice claim s applies and bars W olf e’s suit.
II. Respondeat Superior ¶22. W o lf

e all e g e d in his com

plaint and continues to argue on appeal that Delta, as the

owner o f the p harm acy and em ploy er of the a lleged tortf easor, is responsible f

or the alleged negligence of its em

ploy e es. Under the d octrine of respondeat superior , W olf e contends that Delta i s l i a b l e f

or the alleged negligence of i ts em ploy ees. W olf

e f u rther a s serts that the “[ g]eneral 3-y ear statute of lim itations a pplies regardless of the tortf easor.” B ut according
to this Court’s holding in Lowery v. Statewide H ealthcare Service, Inc. , 585 So. 2d 778, 780 (Miss. 1991), any claim t hat W olf e asserts against Delta that is predicated upon the doctrine of r espondeat s u

perior would also be subject to the two-y ear m edical-m a lpractice statute of lim itations. ¶23. This Court held in Lowery that “a statute that bars a claim a g ain s t a n agent equally protects those in w hose b ehalf he acted as a g ent

. . . .” Lowery , 585 So. 2d at 780 (quoting
3 Am

. Jur. 2 d Agency § 348 (1962)). I n Lowery , parents of a dec e a s e d child b rought a

m edical-m alpractice action against, inter alia, a nurse and the nurse’s private

em ploy e r—Statewide. I

d. at 778–79. The nurse and Statewide w e r e f irst m ade party def endants over f

i ve y e ars af

ter the cause of action accrued. Id. at 779–8 0

. T he parents’ claim against Statewide was based on the doctrine of respondeat superior

. Id. Both the nurse and Statewide successf

ully m o v e d t o d i s m iss the suit on the ground that t he two-y ear

m edical-m alpractice lim itations p eriod had r un. Id. a t 7 7 9

. On appeal t o this Court, the parents argued that “Statewide is not specif i cally nam ed i n [ S ection 15-1-36,] theref ore it

9does not apply to them

. ” Id. This Court disagreed and held that Section “15-1-36 bars both

the right of a c t i on of the plaintif f s[ ] against [ the nurse] a n d Statewide and also bars any

rem edy against b o t h p arties.” Id. at 780. Theref o re, apply ing Lowery , W olf e’s claim s against Delta b ased upon the doctrine of respondeat superior are also subject to the two-y ear

m edical-m alpractice statute of lim itations.
CONCLUSION ¶24. Although W olf

e sued the pharm a cy instead of the pharm acist and couched his claim s in “plain and sim

ple negligence,” his claim s f actually sound in prof

essional m alpractice and arise out of prof

e ssional services that only a licensed pharm acist m ay provide. T hus, W olf e’s claim s are subject to the two-y ear s tatute of lim itations under Mississippi Code Section 15-1-
36. A s a r e sult, W olf

e’s claim s are tim e barred u nder Section 15-1-36. A ccordingly , we af f irm the trial court’s dism i ssal of W olf e’s claim s with prejudice. ¶25. AFFIRMED. RANDOLPH, C .J., KITCHENS AND KING, P.JJ., COLEMAN, M AX WELL, BEAM, ISHEE AND GRIFFIS, JJ., CONCUR.

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