COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00519-CV

RANDOL MILL PHARMACY; KVG 

ENTERPRISES, INC.; GARY G. 

DALEY; JOHN WAYNE BAILEY; 

JAMES ROBERT FORSYTHE; 

KEVIN LYNN HEIDE; JULIE 

KNOWLTON LUBBERT; AND CARA 

MORRELL

APPELLANTS

V.

STACEY MILLER AND RANDY 

MILLER

APPELLEES

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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

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DISSENTING OPINION

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I respectfully dissent from the majority‘s opinion because I believe that the 

claims urged by Stacey and Randy Miller are health care liability claims that 

require an expert‘s report under chapter 74. See Tex. Civ. Prac. & Rem. Code 

Ann. § 74.351 (West 2011). I further believe that the majority adopts an overly 
2

strict interpretation of the Texas Medical Liability Act (TMLA) that both 

unnecessarily heightens the already rigorous statutory requirements pertaining to 

pharmacists and runs contrary to the trend of case law interpreting the TMLA.

The Texas Legislature, hoping to curtail the number of frivolous lawsuits 

and preemptively remedy an impending rise in health care costs, intensified the 

procedural requirements necessary to sustain a cause of action against a health 

care provider when it passed the TMLA. See Scoresby v. Santillan, 346 S.W.3d 

546, 553–54 (Tex. 2011) (―Fundamentally, the goal of the [TMLA] has been to 

make health care in Texas more available and less expensive by reducing the 

cost of health care liability claims.‖). The statutory and procedural rigor of the 

TMLA ought to serve largely to deter frivolous lawsuits regarding health care, 

rather than compel or even encourage litigants to disguise health care liability 

claims and divert them into other areas of the law. See id. Although the TMLA 

heightened the procedural threshold for health care liability claims, it did not alter 

the substantive or underlying nature of these claims. Omaha Healthcare Ctr., 

L.L.C. v. Johnson, 344 S.W.3d 392, 394–95 (Tex. 2011) (―In order to determine 

whether a claim is [a health care liability claim], we consider the underlying 

nature of the claim. Artful pleading cannot alter that nature.‖ (citation omitted)).

The TMLA’s Text

The TMLA provides that a health care liability claim is

a cause of action against a health care provider or physician for 

treatment, lack of treatment, or other claimed departure from 

accepted standards of medical care, or health care, or safety or 
3

professional or administrative services directly related to health care, 

which proximately results in injury to or death of a claimant.

Tex. Civ. Prac. & Rem. Code Ann. § 74.001(13) (West Supp. 2012). The TMLA 

supplies a general definition for a ―[h]ealth care provider‖ that includes a 

pharmacist and any employee, independent contractor, or agent of a pharmacist 

acting ―in the course and scope of the employment or contractual relationship.‖ 

Id. § 74.001(12)(A)(iv), (B)(ii). Additionally, the TMLA generally defines ―[h]ealth 

care‖ as ―any act or treatment performed or furnished, or that should have been 

performed or furnished, by any health care provider for, to, or on behalf of a 

patient during the patient‘s medical care, treatment, or confinement.‖ 

Id. § 74.001(10). Despite these broad definitions, however, the TMLA 

significantly limits the scope of possible health care liability claims against 

pharmacists in a separate provision providing,

―Pharmacist‖ means one licensed under Chapter 551, Occupations 

Code, who, for the purposes of this chapter, performs those activities 

limited to the dispensing of prescription medicines which result in 

health care liability claims and does not include any other cause of 

action that may exist at common law against them, including but not 

limited to causes of action for the sale of mishandled or defective 

products.

Id. § 74.001(22). Therefore, according to this stricter standard, a health care 

liability claim may be sustained only against a pharmacist who dispenses 

prescription medications that result in a health care liability claim.

The issue here hinges on whether appellants qualify as ―health care 

providers‖ under the TMLA, which requires that they satisfy the TMLA‘s criterion 
4

of ―dispensing . . . prescription medications.‖ The Texas Pharmacy Act (TPA)

provides a technical definition for the term ―dispense‖ as it pertains to 

pharmacists:

―Dispense‖ means to prepare, package, compound, or label, in the 

course of professional practice, a prescription drug or device for 

delivery to an ultimate user or the user‘s agent under a practitioner‘s 

lawful order.

Tex. Occ. Code Ann. § 551.003(16) (West 2012).

Both the majority and appellees contend that appellants do not satisfy the 

―prescription drug‖ aspect of the TPA‘s definition of ―dispense‖ because 

appellants did not provide the lipoic acid to Dr. Tan pursuant to an individual 

prescription for Stacey Miller. See id. The standards for ―pharmacist‖ under the 

TMLA and ―dispense‖ under the TPA, however, require merely a ―prescription 

drug,‖ not a drug specifically prescribed for a particular individual. Id.; Tex. Civ. 

Prac. & Rem. Code Ann. § 74.001(22). Appellees rely heavily on the report of 

the Texas Department of State Health Services to support their claim that there 

was no prescription for a specific patient. This very report concedes, however, 

that appellants were compounding ―prescription drugs, such as: Lipoic Acid

Injectable 200 mg/ml.‖ [Emphasis added.] Furthermore, in addition to labeling 

the lipoic acid injections as a ―prescription drug,‖ the report also includes a report

from the pharmacy‘s records of the prescriptions provided to Dr. Tan, which lists 

the date and time that appellants delivered the lipoic acid injections, assigns 
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each order a separate ―Rx #,‖ and notes the specifications and instructions for 

the lipoic acid to be dispensed. 

The majority states that ―Dr. Tan placed a  ̳bulk‘ telephone order with 

appellants on November 29, 2011 and on December 2, 2011 for an aggregate of 

twenty-three 30-millimeter vials of injectable lipoic acid for  ̳office use.‘‖ An orally 

transmitted prescription order may be valid, though, provided that the pharmacist 

notes ―the dispensing instructions of the practitioner‖ and ―retain[s] the 

prescription for the period specified by law.‖ Tex. Occ. Code Ann. § 562.004

(West 2012). The pharmacy‘s report clearly indicates that the pharmacist to 

whom Dr. Tan transmitted his order noted Dr. Tan‘s specifications for 200 mg/ml 

lipoic acid injections. Lastly, there is no requirement that compounding be 

performed strictly for an individual patient to be considered compounding rather 

than manufacturing. See id. §§ 562.152 (―A pharmacy may dispense and deliver 

a reasonable quantity of a compounded drug to a practitioner for office use by 

the practitioner in accordance with this chapter.‖), 551.003(23) (― ̳Manufacturing‘ 

means the production, preparation, propagation, conversion, or processing of a 

drug or device. . . . The term does not include compounding.‖ (emphasis added)),

551.003(9)(B) (― ̳Compounding‘ means the preparation, mixing, assembling, 

packaging, or labeling of a drug or device . . . for administration to a patient by a 

practitioner as the result of a practitioner‘s initiative.‖) (West 2012). Therefore, 

even though the record does not contain an individual prescription for Stacey 
6

Miller, it does indicate that appellants compounded the lipoic acid injections 

pursuant to a prescription from Dr. Tan that is valid for TMLA purposes. 

The second issue the majority raises regarding the definition of ―dispense‖ 

concerns the phrase ―delivery to an ultimate user.‖ Id. § 551.003(16). The TPA 

defines ―deliver‖ or ―delivery‖ as ―the actual, constructive, or attempted transfer of 

a prescription drug or device or controlled substance from one person to another, 

with or without consideration.‖ Id. § 551.003(13). The TPA also defines an 

―ultimate user‖ as a ―person who obtains or possesses a prescription drug or 

device for the person‘s own use or for the use of a member of the person‘s 

household.‖ Id. § 551.003(43). The majority rests its ruling on these two 

definitions; however, other statutes provide further relevant guidance regarding 

the meaning of ―dispense.‖ For instance, the health and safety code also defines 

―dispense‖ in the context of regulating pharmaceutical practice; it provides,

―Dispense‖ means the delivery of a controlled substance in the 

course of professional practice or research, by a practitioner or 

person acting under the lawful order of a practitioner, to an ultimate 

user or research subject. The term includes the prescribing, 

administering, packaging, labeling, or compounding necessary to 

prepare the substance for delivery.

Tex. Health & Safety Code Ann. § 481.002(12) (West 2010) (emphasis added). 

Therefore, according to this definition, the chain of events comprising 

dispensation would have included Dr. Tan‘s administering the lipoic acid to 

Stacey Miller as well as appellants‘ compounding of it. See id.; Tex. Occ. Code 
7

Ann. § 551.003(1) (defining ―administer‖ as the direct application of a prescription 

drug to the body of a patient, including by injection).

The majority construes the definition of ―ultimate user‖ too narrowly,

asserting that appellants did not fulfill the standard because they delivered the 

compounded lipoic acid to Dr. Tan, who did not use the drug on himself. This 

construction unnecessarily increases the already heightened standard imposed 

by the legislature; nowhere does the TMLA dictate the strict privity between a 

pharmacist and an ultimate user that the majority suggests. The majority‘s 

interpretation would deny the many pharmacists who compound drugs for 

individuals that must be administered by nurses or physicians, intravenously or 

otherwise, of the protections afforded to them by the TMLA simply because the 

pharmacist did not personally deliver the prescription to the recipient. Despite 

the TPA‘s more limited definition under the health and safety code, the

administration of a drug to an ultimate user by a physician constitutes sufficient 

―delivery‖ that satisfies the definition of ―dispense.‖

Therefore, a plain text interpretation of the TMLA and related statutes

reveals that appellees did in fact state a TMLA claim against appellants. The 

record supports that the lipoic acid injections were in fact a ―prescription 

medicine,‖ despite not being prescribed for a particular individual. Furthermore, 

administration by a physician is a valid method of ―delivery,‖ so construing Stacey 

Miller as the ―ultimate user‖ is not impermissible under related statutory text, 

even though she did not administer the injections to herself. See Tex. Health & 
8

Safety Code Ann. § 481.002(12). Because the ―prescription drug,‖ injectable 

lipoic acid, was delivered to the ―ultimate user,‖ Stacey Miller, I believe this

situation meets the TPA‘s definition of ―dispense.‖ See Tex. Occ. Code Ann. § 

551.003(16). Therefore, since appellees essentially contend that appellants 

breached an accepted standard of health care when they compounded the lipoic 

acid and ―dispens[ed] . . . [the] prescription medicine[ ],‖ appellees state a claim 

under the TMLA that is subject to chapter 74‘s expert report requirements. See 

id.; see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351. 

The majority conflates two separate elements of the statutory definition of 

―dispense.‖ Essentially, the majority states that for a pharmacist to qualify as a 

health care provider under the TMLA, the pharmacist must dispense a 

prescription drug pursuant to an individual prescription for a specific patient; 

however, this theory unduly heightens the already strict standard pharmacists 

must satisfy to qualify as health care providers under the TMLA. The definition of

―dispense‖ contains multiple distinct requirements: a pharmacist must (1) 

prepare, compound, or label, (2) in the course of professional practice, (3) a 

prescription drug (4) for delivery to an ultimate user or the ultimate user‘s agent 

(5) under a practitioner‘s lawful order. Tex. Occ. Code Ann. § 551.003(16) 

(defining ―dispense‖). The majority‘s interpretation construes the fourth and fifth 

requirements so as to create a more onerous requirement that a pharmacist may 

only prepare, compound, or package a prescription drug for an ultimate user 

pursuant to a practitioner‘s lawful prescription specifically for the ultimate user to 
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satisfy the definition of ―dispense.‖ Id. The statute clearly states, however, that a 

pharmacist need only compound a prescription drug pursuant to a practitioner‘s 

lawful order to satisfy the definition of ―dispense.‖ See id. The occupations code 

includes a distinct definition of ―prescription drug order,‖ defining a prescription 

drug order as ―an order from a practitioner . . . to a pharmacist for a drug or 

device to be dispensed.‖ Id. § 551.003(37)(A) (emphasis added). This definition, 

too, does not require that a prescription drug order be an order from a 

practitioner to a pharmacist for a drug to be dispensed pursuant to a prescription 

for a specific patient. As stated above, Dr. Tan‘s telephonic order to appellants 

for lipoic acid qualifies as a ―practitioner‘s lawful order‖ as it pertains to the 

definition of ―dispense,‖ even though Dr. Tan did not order the lipoic acid 

exclusively as a prescription for Stacey Miller. 

Thus, the final remaining issue is whether the criterion that the drug is 

delivered to an ―ultimate user‘s agent‖ is satisfied. The majority concedes that a 

doctor or nurse administering a drug could serve as an ―ultimate user‘s agent‖; 

however, they qualify this concession by stating that a doctor or nurse is an 

―ultimate user‘s agent‖ under the definition of ―dispense‖ only if the doctor or 

nurse administers a drug prescribed specifically for the ―ultimate user.‖ This 

creates another ancillary requirement not included within the statute. The 

definition of ―ultimate user‖ requires only that a person ―obtain[] or possess[] a 

prescription drug . . . for the person‘s own use‖; this definition does not require 

that the ultimate user do so as the result of a specific and unique prescription, 
10

and the definition of ―dispense‖ requires only that the drug be delivered to the 

ultimate user under a practitioner‘s lawful order. Id. § 551.003(16), (43). The 

existence of a specific prescription does not alter the identity of the ultimate user

or the nature of the agents who may administer the drug. Stacey Miller is the 

―ultimate user‖ of the prescription drug—lipoic acid—because she ―obtain[ed]‖ 

and ―possess[ed]‖ the prescription drug when her agent—Dr. Tan—delivered the 

drug to her by administering the injection. Id. § 551.003(43). 

In sum, because the lipoic acid was compounded under Dr. Tan‘s lawful 

order and then delivered either actually to Stacey Miller‘s agent, Dr. Tan, or 

constructively to Stacey Miller herself by Dr. Tan, appellants did in fact 

―dispense‖ the lipoic acid, which qualifies them as health care providers under 

the TMLA. Id. §§ 551.003(13) (defining ―delivery‖ as the ―actual‖ or ―constructive‖ 

transfer of a prescription drug), 551.003(16); Tex. Civ. Prac. & Rem. Code Ann. §

74.001(22). 

Interpretation of the TMLA

The majority‘s interpretation also runs contrary to the case law interpreting 

the TMLA. In general, courts have construed the TMLA broadly, so as to include 

claims within the TMLA. See, e.g., Diversicare Gen. Partner, Inc. v. Rubio, 185 

S.W.3d 842, 853–54 (Tex. 2005) (holding that patient‘s claim against health care 

provider for assault by another patient was health care liability claim); Covenant 

Health Sys. v. Barnett, 342 S.W.3d 226, 233–34 (Tex. App.—Amarillo 2011, no 

pet.) (holding that allegations of improper monitoring of patient at free heart 
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screening test and placing of aerobic step for screening too close to wall 

constituted health care liability claim); Scientific Image Ctr. Mgmt., Inc. v. Brewer, 

282 S.W.3d 233, 239–40 (Tex. App.—Dallas 2009, pet. denied) (holding that 

plaintiff‘s claims couched as claims under the Texas Deceptive Trade PracticesConsumer Protection Act for failed elective plastic surgery were in essence 

health care liability claims governed by chapter 74); Clark v. TIRR Rehab. Ctr., 

227 S.W.3d 256, 262–64 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding 

that failure to supervise elderly woman attempting exercise during physical 

therapy was health care liability claim). This broad construction of the TMLA 

largely serves to further the legislature‘s intent that decisions requiring medical, 

health care, or otherwise professional judgment be weighed against accepted 

standards of professional care, thereby insulating medical and health care 

professionals from claims of ordinary negligence arising from the exercise of 

professional judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(13) 

(defining health care liability claim as ―a cause of action . . . [for a] claimed 

departure from accepted standards of medical care, or health care, or safety or 

professional or administrative services directly related to health care‖); see also

Clark, 227 S.W.3d at 262–64; Oak Park, Inc. v. Harrison, 206 S.W.3d 133, 139 

(Tex. App.—Eastland 2006, no pet.) (holding that allowing dangerous patient to 

remain in same room as another patient was governed by accepted standards of 

medical care, health care, and safety rather than by ordinary negligence).
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The core rationale behind holding professionals to a professional standard 

of care and requiring a threshold expert report is that many of the elements of a 

medical negligence claim and the facts that underlie them transcend common 

knowledge. In most claims of medical negligence, an expert would be required 

eventually to prove causation or damages, so the threshold expert report 

requirement in chapter 74 seeks to eliminate meritless or medically 

unsustainable claims before they progress to further stages of litigation. See 

Saleh v. Hollinger, 335 S.W.3d 368, 374 (Tex. App.—Dallas 2011, pet. denied) 

(―In determining whether a claim is inseparable from the rendition of medical 

care, we consider factors such as whether a specialized standard in the health 

care community applies to the alleged circumstances and whether the alleged 

negligent act involved medical judgment related to the patient‘s care or 

treatment.‖) (citing Diversicare, 185 S.W.3d at 847–52); see also Inst. For 

Women’s Health, P.L.L.C. v. Imad, No. 04-05-00555-CV, 2006 WL 334013, at *3 

(Tex. App.—San Antonio Feb. 15, 2006, no pet.) (mem. op.) (―Expert testimony is 

necessary to establish the applicable standard of care  ̳when the alleged 

negligence is of such a nature as not to be within the experience of the layman.‘‖

(quoting FFE Transp. Serv., Inc v. Fulgham, 154 S.W.3d 84, 90 (Tex. 2004)).

The majority‘s construction of the TMLA leads to a result directly at odds 

with the legislature‘s intent. Not only does the majority‘s interpretation deny 

appellants the statutory protection of measuring their professional judgment 

against an accepted standard of professional care, it also exposes appellants to 
13

greater liability by allowing appellees to couch an essentially health care based 

claim in terms of a product liability claim and circumvent the procedural 

standards of chapter 74. See Omaha Healthcare Ctr., L.L.C., 344 S.W.3d at 

394–95 (stating litigants cannot avoid the requirements of the TMLA by artfully 

pleading a health care liability claim and classifying the claim as a different cause 

of action).

Here, appellees allege their claims against appellants in terms of a 

products liability suit in which they assert that appellants compounded defective 

lipoic acid. Compounding is an integral aspect of the practice of pharmacy, 

however, such that it is part of the standard curriculum at most pharmacy 

schools. See Med. Ctr. Pharm. v. Mukasey, 536 F.3d 383, 387–88 (5th Cir. 

2008) (citing Thompson v. W. States Med. Ctr., 535 U.S. 357, 361, 122 S. Ct. 

1497, 1500 (2002)). Although a significant portion of the professional practice of 

pharmacy has lapsed into the process of packaging and distributing 

premeasured dosage units provided by large-scale manufacturers for retail sale 

and distribution, the localized service of compounding prescription drugs 

nevertheless continues to require a pharmacist‘s professional judgment and skill. 

Compare Tex. State Bd. of Pharm. v. Gibson’s Disc. Ctr., Inc., 541 S.W.2d 884, 

888 (Tex. App.—Austin 1976, writ ref‘d n.r.e.) (―[I]t is a fair conclusion that the 

dispensing of prescription drugs has become more of a retail endeavor than a 

service endeavor.‖), and Va. State Bd. of Pharm. v. Va. Citizens Consumer 

Council, 425 U.S. 748, 773–74, 96 S. Ct. 1817, 1831 (1976) (Burger, J., 
14

concurring) (―The Court notes that roughly 95% [o]f all prescriptions are filled with 

dosage units already prepared by the manufacturer and sold to the pharmacy in 

that form. . . . In dispensing these prepackaged items, the pharmacist performs 

largely a packaging rather than a compounding function of former times.‖), with, 

e.g., 22 Tex. Admin. Code § 291.131(c)(2) (2012) (Tex. State Bd. of Pharm., 

Pharmacies Compounding Non-Sterile Preparations) (dictating that a pharmacist 

must review and approve the materials, equipment, and final product during the 

compounding process as well as ensure that all pharmacists and technicians 

engaged in compounding possess the requisite education and experience).

Compounding prescription drugs requires an equal, if not greater, degree 

of professional judgment on the part of the pharmacist than does preparing 

preformed dosage units for distribution. Even so, the majority of claims brought 

under chapter 74 that name a pharmacist as a defendant have concerned the 

misfilling of a prescription or distribution of an incorrect drug, and courts have

consistently held that these claims are in fact health care liability claims requiring 

an expert report under chapter 74. See, e.g., Walgreen Co. v. Hieger, 243 

S.W.3d 183, 186–87 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (holding 

plaintiff‘s expert report insufficient in misfilled prescription case); HEB Grocery 

Co., L.L.P. v. Farenik, 243 S.W.3d 171, 176–77 (Tex. App.—San Antonio 2007, 

no pet.) (affirming sufficiency of plaintiff‘s expert report in misfilled prescription 

case); Randalls Food and Drugs, L.P. v. Kocurek, No. 14-05-01184-CV, 2006 

WL 2771872, at *2–3 (Tex. App.—Houston [14th Dist.] Sept. 28, 2006, no pet.) 
15

(mem. op.) (holding expert report insufficient as to causation in misfilled 

prescription case); Ruiz v. Walgreen Co., 79 S.W.3d 235, 238 (Tex. App.—

Houston [14th Dist.] 2002, no pet.) (holding that TMLA applies in misfilled 

prescription case); see also CVS Pharm., Inc. v. Ballard, No. 01-12-00253-CV, 

2012 WL 4742652, at *4–6 (Tex. App.—Houston [1st Dist.] Oct. 4, 2012, no pet.) 

(mem. op.) (holding expert report sufficient in claim against pharmacy for failing 

to recognize and correct dangerous drug overdose and for failing to fill 

prescription in accordance with Texas Pharmacy Practice Standards); Gingrich v. 

Scarborough, No. 09-09-00211-CV, 2010 WL 1711067, at *5–6 (Tex. App.—

Beaumont Apr. 29, 2010, no pet.) (mem. op) (rejecting sufficiency of plaintiff‘s 

expert report for claim that pharmacist failed to recognize excessive prescription 

before filling and distributing prescription). Furthermore, in many of the cases 

listed above, the courts held that an expert report was required because the 

alleged negligence exceeded the ordinary knowledge of a layman and thus had 

to be measured against a standard of professional care. If claims pertaining to 

the misfilling of prescription drugs exceed the ordinary knowledge of a layman so 

as to require a chapter 74 expert report, it logically follows that allegations of 

negligence that occurred during the process of compounding a prescription drug 

ought to require a chapter 74 expert report as well.

Moreover, even claims against pharmacists that resemble products liability 

claims have been held to fall within the parameters of chapter 74. See San 

Antonio Extended Med. Care, Inc. v. Vasquez, 327 S.W.3d 193, 199–200 (Tex. 
16

App.—San Antonio 2010, no pet.) (op. on reh‘g) (holding that chapter 74 expert 

report was required in case in which plaintiff alleged ordinary negligence against

―prescription drug‖ firm that provided improperly filled oxygen tanks for plaintiff‘s 

ventilator). The Texas Supreme Court recently reversed part of a ruling that 

attempted to divide a claim against a pharmaceutical device provider into 

separate products liability and TMLA causes of action. Turtle Healthcare Grp., 

L.L.C. v. Linan, 337 S.W.3d 865, 869 (Tex. 2011). The appellate court originally 

attempted to separate the claims that alleged a departure from accepted 

standards of medical care from those that merely alleged ordinarily negligence. 

Turtle Healthcare Grp., L.L.C. v. Linan, 338 S.W.3d 1, 9 (Tex. App.—Corpus 

Christi 2009) (Vela, J., dissenting) (―The Linans‘ claim is one for the breach of the 

standard of care for a health care provider because providing Linan with a 

functioning ventilator is inseparable from insuring that the batteries, necessary for 

proper functioning of the ventilator, were properly charged.‖). The Supreme 

Court followed the reasoning of Justice Vela‘s dissent in its opinion, holding that 

even the pharmacy‘s duty to ensure that batteries were properly charged fell 

within the boundaries of the TMLA in that any claims of negligence regarding the 

improperly charged batteries must be judged against an accepted standard of 

professional care rather than ordinary care. Turtle Healthcare Grp., L.L.C., 337 

S.W.3d at 867–69.

Here, appellants engaged in a process much more complex than ensuring 

that oxygen tanks were fully filled or batteries fully charged at the time of delivery. 
17

Also, the process of compounding requires more professional judgment and 

discretion than the process of distributing preformed dosage units. To hold 

appellants‘ alleged negligence in compounding to a standard of ordinary care 

when other courts have measured even the duty to ensure that batteries are 

properly charged or preformed dosage prescriptions properly filled against an 

accepted standard of professional care would be counterintuitive to our primary 

goal of giving effect to the legislature‘s intent as expressed within the TMLA. See 

Tex. Gov‘t Code Ann. § 312.005 (West 2013) (―In interpreting a statute, a court 

shall diligently attempt to ascertain legislative intent.‖). The Texas Supreme 

Court has recognized the breadth of the TMLA‘s scope, and the interpretations of 

other courts listed above indicate how the courts have followed this trend 

specifically with respect to the TMLA as it pertains to pharmacists. Tex. W. Oaks 

Hosp., LP v. Williams, 371 S.W.3d 171, 176 (Tex. 2012) (―We recognize that the 

Legislature intended the Texas Medical Liability Insurance Improvement Act 

(TMLIIA), the TMLA‘s predecessor, to be broad, and it broadened that scope 

further in 2003 with its repeal and amendments resulting in the TMLA.‖). We 

should not deviate from this trend by imposing even stricter requirements on 

classifying claims against pharmacists as health care liability claims than the 

legislature has explicitly included within the TMLA.

According to the majority‘s interpretation, the difference between holding a 

pharmacist liable under the TMLA or ordinary tort law could be whether a nurse 

or physician administered the drug as opposed to the pharmacist directly 
18

delivering the prescription to the patient. Such an interpretation is not only 

unduly strict and constraining, but it is also untenable insofar as it leads to an 

absurd result that diverges from the legislature‘s intent. See Jennings v. 

WallBuilder Presentations, Inc. ex rel. Barton, 378 S.W.3d 519, 523 (Tex. App.—

Fort Worth 2012, no pet.) (citing Tex. Lottery Comm’n v. First State Bank of 

DeQueen, 325 S.W.3d 628, 635 (Tex. 2010)). By compounding the lipoic acid, 

appellants engaged in one of the most time-honored aspects of the professional 

practice of pharmacy, one that antedates mass production and distribution of 

uniform pharmaceuticals and requires professional judgment, education, and 

aptitude.

Conclusion

One of the primary purposes of the TMLA is to protect professionals from 

meritless negligence claims and to measure any alleged negligence against a 

professional standard. Respectfully, I believe the majority‘s interpretation would 

deny appellants the statutory protection of measuring their judgment against an 

acceptable standard of professional care. For these reasons, I dissent from the 

majority opinion and would reverse the trial court‘s denial of appellants‘ motion to 

dismiss for failure to file a chapter 74 expert report and remand the case to the 

trial court with instructions to dismiss appellee‘s claims against appellants and to 
19

consider whether to award reasonable attorney‘s fees. See Tex. W. Oaks Hosp., 

371 S.W.3d at 193.

TERRIE LIVINGSTON

CHIEF JUSTICE

DELIVERED: September 19, 2013