Brenda Cackowski and Michael Cackowski v. Wal-Mart Stores, Inc., et al.

Negligence - Alabama Medical Liability Act (AMLA) - On October 11, 1995, Brenda Cackowski enrolled in a
physician-supervised weight-loss program and was prescribed a
number of medications: Verelan, Profast, and Pondimin. Verelan
is a medication commonly prescribed for high blood pressure.
Profast and Pondimin are diet medications.[fn1] The next day,
Mrs. Cackowski went to the Wal-Mart pharmacy in Arab and had the
prescriptions filled. The clerk on duty at the pharmacy counter
asked Mrs. Cackowski if she wanted to have her prescriptions
filled with generic medication, rather than the brand-name
medication. Mrs. Cackowski stated that she did. Gavin Gilleland,
the pharmacist on duty that day, correctly filled the Profast
prescription. However, Gilleland misread the word "Pondimin,"
thinking the prescription was for Prednisone, a steroid. Instead
of giving Mrs. Cackowski Pondimin or its generic equivalent, he
gave her Deltasone, the generic equivalent of Prednisone. Because
it was the cold and flu season, Gilleland did not think it unusual
that a physician would prescribe a diet drug and a steroid (which
causes weight gain) for the same person and to be taken at the
same time.

Although Mrs. Cackowski left the prescription with the
pharmacist, her physician had also given her a list of the drugs
he was prescribing for her. This list stated that he was
prescribing Profast, Pondimin, and Verelan for her. Mrs.
Cackowski knew that Gilleland gave her Deltasone rather than
Pondimin, but she did not ask Gilleland the difference. Mrs.
Cackowski took the Deltasone for 30 days, in accordance with the
directions on the prescription. When Mrs. Cackowski finished
the prescription, she went back to Wal-Mart to have it refilled.
When the prescription was refilled, it was correctly filled and
she received Pondimin. However, several days after she began
taking the Pondimin, Mrs. Cackowski began to experience blurred
vision and lethargy. Her husband became concerned and contacted
her physician. Further investigation revealed Gilleland's error.

On September 16, 1996, the Cackowskis sued Wal-Mart and its
pharmacist Gavin Gilleland, alleging negligence and wantonness in
the incorrect filling of Mrs. Cackowski's prescription for diet
medication. Mr. Cackowski also claimed a loss of consortium.

At trial, Mrs. Cackowski stated that she suffered pain and
stiffness in her knees, muscle pain, and acne as a result of
taking the steroid Deltasone for 30 days. Moreover, when Mrs.
Cackowski stopped taking the steroid and began taking the correct
medication, her system went into withdrawal, causing the blurred
vision and lethargy. After the mistake in prescriptions was
discovered, Mrs. Cackowski had to be put back on the steroid and
gradually weaned off the drug. As a result of taking the steroid,
Mrs. Cackowski claimed, she had difficulty in concentrating and
had memory loss, hair loss, night sweats, joint pain, and swollen
glands. Mrs. Cackowski also stated that she became severely
depressed and suicidal. Two physicians diagnosed Mrs. Cackowski
as suffering from depression and Epstein-Barr virus. One
mental-health professional determined that Mrs. Cackowski's
depression and anxiety stemmed from steroid use.

Wal-Mart presented testimony from two physicians who disputed
the long-term effects of the steroids taken by Mrs. Cackowski.
They testified that the problems experienced by Mrs. Cackowski
were related to the long-term use of the prescribed diet
medications, use of the antidepressant "Serzone," and the
"Adenosine" injections she received in conjunction with her
weight-loss program. These physicians also disputed whether the
active Epstein-Barr virus was present in Mrs. Cackowski's system.
According to them, Mrs. Cackowski's test results indicated the
presence of the Epstein-Barr antibody in her system, and its
presence would indicate that she may have been exposed to the
virus at some time in the past. In any event, the presence of the
Epstein-Barr virus or antibody in Mrs. Cackowski's system was not
related to her use of the steroid Deltasone.

The trial court ruled that a pharmacist fell within the
definition of "other health care provider" set out in §
6-5-481(8), Ala. Code 1975. Therefore, the court determined, the
Cackowskis' claims against Gilleland and Wal-Mart were governed by
the Alabama Medical Liability Act ("AMLA"), §§ 6-5-480 through
6-5-488, and §§ 6-5-540 through 6-5-552, Ala. Code 1975, and that
those statutes required them to prove their case by "substantial
evidence."

Defendant's verdict.

Unknown

Unknown

Reversed and remanded with intructions by the Supreme Court of Alabama. See: ___ So.2d ___ (Ala. 1-21-2000). Note: The above date reflects the appellate court decision date, not the original trial date. Reported by kkm.