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Streit v. American Drug Stores3/10/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this wrongful death lawsuit, the trial court gave judgment to a drug store after concluding that the decedent's relatives failed to assert a timely claim within the statute of limitations. We affirm.
FACTS
Tom Streit (decedent) died on February 10, 1998. He had fallen ill several months earlier. Decedent's physician, Dr. Andrews, prescribed a medication called Nilandron on December 1, 1997. At the time he prescribed Nilandron, Dr. Andrews provided decedent with several samples of the drug. It is not clear whether Dr. Andrews advised decedent about the side effects of Nilandron.
Decedent's wife picked up the prescription for Nilandron from a Sav-On pharmacy on December 3, 1997. The pharmacist who dispensed the prescription did not recall whether he counseled Mrs. Streit at the time she collected decedent's medication. Mrs. Streit testified that the clerk at the pharmacy handed her a bag containing the Nilandron and collected her co-payment, but did not ask whether Mrs. Streit wanted counseling regarding the drug. Mrs. Streit was unaware that she had a right to a consultation with a pharmacist.
In December 1997 and twice in January 1998, decedent went to the hospital emergency room. A refill of decedent's Nilandron prescription was authorized on December 29, 1997, and picked up at Sav-On on January 4, 1998. An additional refill was picked up at Sav-On on January 19, 1998. At her deposition, Mrs. Streit stated that she demanded "the warning thing" (i.e., the "Sav-On Pharmacy Answers" document) from the Sav-On pharmacist at January 19, but was told there was none. She also asked the pharmacy for the Nilandron package insert because "by then I was concerned, really concerned." The pharmacy did not give Mrs. Streit the insert.
On January 20, 1998, decedent met with Dr. Luk, his primary physician, who observed that decedent looked jaundiced. His eyes and skin were yellow. Dr. Luk explained to Mrs. Streit that decedent's jaundice was most likely related to his medication. Dr. Luk advised decedent to cease taking Nilandron. Dr. Andrews similarly advised the Streits that decedent should no longer take Nilandron.
Decedent was hospitalized for four days starting January 26, 1998, for treatment of pneumonia, jaundice and fatigue. He had difficulty breathing. Decedent was rehospitalized on February 7, 1998, and died three days later. On the day decedent passed away, Dr. Andrews met with decedent's family and told them that the Nilandron had caused decedent's problems, and his illness was "almost like an anaphylactic reaction." Mrs. Streit at that point understood that decedent's symptoms and death were medication related.
Decedent's wife and children (collectively, appellants) sued Drs. Andrews and Luk for wrongful death on April 15, 1999. On March 30, 2000, appellants amended their complaint to add respondent American Drug Stores, Inc., the owner of Sav-On, as a defendant. The trial was bifurcated to resolve the issue of the statute of limitations, which was raised as an affirmative defense in respondent's answer. The court gave judgment to respondent after finding that appellants' claims were untimely. This timely appeal followed.
DISCUSSION
The statute of limitations for a lawsuit against a health care provider is three years after the date of inju
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