## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 12 - 00519 - CV RANDOL MILL PHARMACY; KVG ENTERPRISES, INC.; G ARY G. DALEY; JOHN WAYNE BA ILEY; JAMES ROBERT FORSYTH E; KEVIN LYNN HEIDE; JU LIE KNOWLTON LUBBERT; AN D CARA MORRELL APPELLANTS

V. STACEY MILLER AND RA NDY MILLER APPELLEES

---------- FROM THE 348TH DISTRICT C OURT OF TARRANT COUN TY

---------- 

### DISSENTING OPINION

---------- I respectfully dis sent 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 be lieve that the m ajority adopts an overly2

strict interpretation of th e 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 inte rpre ting the TMLA. The Texas Legislature , hoping to curt ail the number of frivolous law suits and preemptively remedy an impending rise in health care costs, intensified the procedural requirements necessary to sustain a cause of action against a health

car e provider when it passed the TMLA

. See Scoresby v. Santillan , 346 S.W. 3d 546, 553

– 54 (Tex. 2011) (―F undamentally, 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 law suits regarding health care, rather than compel or even encourage litigants to disguise health care liability claims and divert t hem into other areas o f the law

. See id. A lthough the TMLA heightened the procedural threshold for health care liability claims, it did not alter the substan tive 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 underl ying nature of the claim. A rtful plead ing cannot alter that nature.‖ ( citation omitted ) )

. The TMLA’s Text The TMLA provides that a health care liability cl aim is a cause of action against a health care provider or physician for treatment, lack o f treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or3

professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant. Tex. Civ. Prac. & Rem. Co de Ann. § 74.001(13) (West Supp. 2012) . The TMLA supplies a general definition f or a ― [h] ealth care provider‖ that includes a pharmacist and any empl oyee, 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 define s ― [ h ] ealth care‖ as ―any act or treatment per formed 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 definition s , 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 purpose s of this chapter, performs t hose activities limited to the dispensing of prescription medi cines 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 t o this stricter standard, a health care liability claim may be sustained only against a pharmacist who dispenses prescription medications that res ult in a health care liab ility claim

. The issue here hinges on whether a ppellant s qualify as ―health care providers‖ under the TMLA, which requires that they satisfy the TMLA‘s criterion4

of ―dispens ing

. . . prescription medications. ‖ The Texas Pharmacy Act (TPA ) provides a techn ical 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 unde r a practitioner‘s lawful order. Tex. Occ. Code Ann. § 551.003(16) (West 2012). Both the m ajority and a ppellees contend that a ppellants do not satisfy the ―prescription drug‖ aspect of the TPA‘s defini tion of ―dispense‖ because

a ppellants did not provide the lipoic acid to Dr. Tan pursuant to a n individual prescription for Stacey Miller

. See i d

. The standards for ―pharmacist‖ under the TMLA and ―dispense‖ under the TPA , however, require merely a ―prescription drug,‖ not a d rug specifically prescribed for a particular individual

. Id. ; Tex. Civ. Prac. & Rem. Code Ann. § 74.001(22)

. A pp ellees rely heavily on the report of the Texas Depart ment of State Health Services to support their claim that there was no prescription for a specific patient. This very r eport concedes, however, that a ppellants 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 includ es a report from the pharmacy‘s records of the pre scriptions provided to Dr. Tan, which lists the date and time that a ppellants delivered t he lipoic acid injections, assigns5

each order a separate ―Rx #,‖ and not e s the specifications and instructions for th e lipoic ac id to be dispensed. T he m ajority states that ―Dr

. Tan p laced a  ̳bulk‘ telephone order with

a ppellants 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 20 12) . 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 stri ctly for an indi vidual patient to be considered compounding rather than manufacturing. See id. § § 562.15 2 (―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 chapte r.‖) , 551.003(23) (―  ̳ Manufacturing‘ means the production, preparation, propagation , conversion, or processing of a drug or device . . . . T he term d oes 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 S tacey6

Miller, it does indicate that a ppellants compounded the lipoic acid injections pursuant to a prescription from Dr. Tan that is valid for TMLA purposes. The second issue the m ajority raises regarding the definition of ―dispense‖ concerns the phrase ―delivery to an ultimate user.‖ Id . § 551.00 3(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 considera tion.‖ Id

. § 551.003(13). T he 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 m ajority 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 ―d ispense‖ in the context of regulating pharmaceutical practice; it p rovides , ―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 t he prescribing, administering , packaging, labeling , or compounding necessary to prepare the substance for delivery. Tex. Health & Safety Code Ann. § 481.002(12) (West 201 0 ) (emphasis added)

. Therefore, according to this definition, the chain of events co mprising 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. Code7

Ann. § 551.003(1) (defining ― a dminister‖ as the direct application of a prescription drug to the body of a pat ient, including by injection). The majority construes the definition of ―ultimate user‖ too narrowly, asserting that a ppellants did not fulfill the standard because they delivered the compounded lipoic acid to Dr. Tan , who did not use t he 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 m ajority suggests. The m ajority‘ 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 persona lly deliver the prescription to the re cipient. 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 interpret ation of the TMLA and related statutes reveals that a ppellees did in fa ct state a TMLA claim against a ppellants. The record supports that the lipoic acid injections were in fact a ― prescription medicine , ‖ despi te not being prescribed for a particular individual . Furthermore, administration by a physician is a valid method o f ―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 meet s the TPA‘s definition of ―dispense.‖ See Tex. Occ. Code Ann. § 551.003(16). The refore, since a ppellees essentially contend that a ppellants breached an accepted standard of health care wh en they compounded the lipoic acid and ―dispens[ed] . . . [the] prescription medicine[ ], ‖ a ppellees 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.‖ Essen tially, the majority state s 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 professiona l 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 t he 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 to9

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 d istinct 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 .‖ I d . § 551.003(37)(A) (emphasis added). This definition, too, does not requir e 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 appellant s for lipoic acid qualifies as a ―practi tioner‘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 th at 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 t he doctor or

nurse administer s 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 [] o r 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 tha t 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, bec ause 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 Sta cey Miller herself by Dr. Tan, appellants did in fact ―dispense‖ the lipoic acid, which qualifies them as health care provider s 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 m ajori ty‘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. 20 05) (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.) (holdi ng that allegations of improper monitoring of patient at free heart11

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. denie d ) (holding that plaintiff‘s claims couched as claims under the Texas Deceptive Trade Practices

Consu mer Protection Act for failed elective plastic surgery were in essence health care liability claim s 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 l egislature‘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 negligen ce arising from the exercise of professional judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(13) ( d efining health care liability claim as ―a cause of action . . . [for a] claimed departure from accepted standards of medical care, or health care, o r 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

rem ain in same room as another patient was governed by accepted standards of medical care, health care, and safety rather than by ordinary negligence).12

The core rationale behind holding professionals to a professional standard of care and requiring a threshol d 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 thre shold 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 3 68, 374 (Tex. App.

— Dallas 2011, pet. denied ) (―In determ ining 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 jud gment 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.) (―Exper t 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 m ajo rity‘s construction of the TMLA leads to a result directly at odds with the l egislature‘s intent. Not only does the m ajority‘s interpretation deny

a ppellants the statutory protection of measuring their professional judgment against an accepted standard of professional care, it also exposes a ppellants to13

greater liability by allowing a ppellees 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, a ppellees allege their claims against a ppellan ts in terms of a products liability suit in which they assert that a ppellants compounded defective lipoic acid. Compounding is a n integral aspect of the practice of pharmacy, however, such that it is part of the standard curriculum at most pharmacy school s. 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 pract ice of pharmacy has lapsed into th e 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 j udgment and skill. Compare Tex. State Bd. of Pha rm

. v. Gib s on’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 tha n 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) (― T he 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 a nd 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 uni ts for distribution. Even so, the majority of claims brought under chapter 74 that name a pharmacist as a defendant have concerned the misfil l ing of a prescription or di stribution of an incorrect drug, and courts have consistently held that these claims a re 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

- 01 184

- 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); s ee 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 suffici ent 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 (Te x. 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 li sted above, the court s held that a n 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 misfi l ling of prescr iption 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 Anto nio 2010, no pet.) (op. on reh‘g) ( holding that chapter 74 expert report was required in case in which plaintiff alle ged ordinary negligence against ―prescription drug‖ firm that provided improperly filled oxygen tanks for plaintiff‘s ventilator) . The Tex as Supreme Court recently reversed part of a ruling that attempted to divide a claim against a pharmaceutical device provider into separate product s liability and TMLA causes of action. Turtle Healthcare Grp., L.L.C. v. Linan , 337 S.W.3d 865, 869 (Tex. 20 11). 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 wit hin the boundar ies 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

– 6 9. Here, a ppellants 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 distributi ng preformed dosage unit s. To hold

a ppellants‘ 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 prescription s properly filled a gainst 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 (We st 2013) (―I n interpreting a statute, a court

s hall 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 res pect 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 cla ims than the legislature has explicitly included within the TMLA

. According to the m ajority‘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 directly18

delivering the prescription to the patient. Such an interpretation is not only unduly strict and constraining, but it is a lso untenable insofar as it leads to an absurd result that diverges from the legislature‘s int ent. 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,

a p pellants engaged in one of the most time

- honored aspects of the pr ofessional practice of pharmacy, one that antedates mass production and distribution of uniform pharmaceuticals and requires professional judg ment, 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 m ajority‘s interpretation would deny a ppellants 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 a ppellants ‘ motion to dismiss for failure to file a chapter 7 4 expert report and remand the case to the trial court with instructions to dismiss appellee‘s claims against appellants and to19

consider whether to award reasonable a ttorney‘s fees. See Tex

. W

. Oaks Hosp ., 371 S.W.3d at 193.

TERRIE LIVINGSTON CHIEF J USTICE DELIVERED: September 1 9 , 2013