AKRON, Ohio (Legal Newsline) - A man who was prescribed antibiotics after crushing his finger but never picked them up from Walmart can sue the retailer for failing to track him down and make sure he received the drugs before the damaged finger led to a devastating infection and the loss of both legs, an Ohio appeals court ruled.
The court rejected Walmart’s argument it had no duty to the worker, who obtained the prescription under a false name and wasn’t in the company’s customer database.
Antonio Perez-Herrera, a Guatemalan immigrant who doesn’t speak English, smashed his finger while on a break from work at the Ohio Farms Packing Co. slaughterhouse in Creston. His employer transported him to the Now Clinic, where a physician assistant X-rayed his finger and determined it wasn’t broken (his treatment included the stitching of his fingernail back to his finger). A radiologist who later viewed the X-ray decided the finger was broken and ordered Augmentin to treat potential infection.
Perez-Herrera was using the identification of someone else named Paul Lujan and the clinic had no patient information for him, so a nurse called the slaughterhouse about the prescription and a Spanish-speaking employee explained to Perez-Herrera that the Augmentin prescription would be at Walmart the following day.
Perez-Herrera went to the Walmart at 10 a.m. the next day and asked for the prescription under the name of Paul Lujan but it wasn’t ready. He had shopped at the store before, but always paid in cash and wasn’t in the Walmart database. The clerk didn’t ask for his information or suggest he check back later and he never returned to pick up the prescription. Several days later he was taken to the hospital on Christmas Day, 2017, with a severe infection that had spread through his body and required the amputation of both legs and several fingers.
Perez-Herrera sued numerous parties including the clinic and later added Walmart, claiming it was negligent for either failing to fill the prescription on time or for failing to track him down when it was ready. A trial court dismissed the claim against Walmart, ruling it had no duty to Perez-Herrera.
Ohio’s Ninth District Court of Appeals reversed the decision in a Jan. 23 opinion. The trial court should have accepted all of Perez-Herrera’s claims as true on motion for summary judgment, the appeals court said. Had it done so, the question of the extent of Walmart’s duty to him was a fact question for a jury to decide.
There was some evidence the clinic had phoned the prescription in to Walmart the day of the accident, the appeals court ruled. But even if that didn’t occur, as a pharmacy, Walmart had a duty to Perez-Herrera and that duty could have included taking down his customer information and calling him back when the prescription was ready. Walmart didn’t specifically challenge the claim it should have tracked down Perez-Herrera as a matter of law and therefore forfeited the issue, the court said.
Perez-Herrera was represented by Kevin Schifri, Stephanie McGowan and Matthew Blickensderfer. Walmart was represented by Kathleen St. John and Jonathan D. Mestor.