2013-00142466-CU-PO

Gethania Wilson vs. Wal Mart Stores Inc

Nature of Proceeding: Hearing on Demurrer and Motion to Strike

Filed By: Melton, David A.

Defendant’s Demurrer to the Complaint is unopposed, taken as a concession to the
merits, and is sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action.

Plaintiff alleges that defendant Wal Mart’s pharmacy was negligent on April 22, 2011
when it filled plaintiff’s prescription for “10 milligrams” of Hydralazine with “100 milligram” tablets. Plaintiff was hospitalized and alleges personal injuries arising from
the mistake in filling the prescription.

Plaintiff alleges that she was told on April 17, 2011 that her personal injuries were due
to the fact that WalMart’s pharmacy had provided the wrong dose of Hydralazine. The
Complaint was filed on March 29, 2013.

The negligence claim against the pharmacy is governed by the statute of limitations
that applies to medical malpractice. The applicable statute of limitations for medical
malpractice is three years from the date of injury or one year after the plaintiff
discovers, or through the use of reasonable diligence should have discovered the
injury, whichever occurs first. (CCP 340.5)

CCP § 340.5 provides in relevant part, “In an action for injury or death against a health
care provider based upon such person’s alleged professional negligence, the time for
the commencement of action shall be three years after the date of injury or one year
after the plaintiff discovers, or through the use of reasonable diligence should have
discovered, the injury, whichever occurs first.”

CCP 340.5(1) provides “‘Health care provider’ means any person licensed or certified
pursuant to Division 2 (commencing with Section 500) of the Business and Professions
Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic
Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of
Division 2 of the Health and Safety Code and any clinic, health dispensary, or health
facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health
and Safety Code. “Health care provider” includes the legal representatives of a health
care provider.” Pharmacists are licensed under Division 2 of the Business &
Professions Code, section 4000 et seq. See, also, Huggins v. Long Drug Stores,
California(1993) 6 Cal. 4th 124, 132 [“There is no material distinction between the
professional duties of pharmacists and the duties of other health care providers…”];
Chosak v. Alameda County Medical Center (2007) 153 Cal. App. 4th 549, 559-560.

The motion to strike claim for punitive damages is granted, with leave to amend. CCP§
425.13 provides, in pertinent part that “no claim for punitive damages shall be included
in a complaint or other pleading unless the court enters an order allowing an amended
pleading that includes a claim for punitive damages to be filed. ”

The plaintiff is given leave to amend since this is the first challenge to the pleadings,
and plaintiff has the right to amend her complaint up until the time of the hearing. CCP
472. Plaintiff may file and serve an Amended Complaint on or before October 25,
2013. Response to be filed and served within 15 days of service of the amended
complaint, 20 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.