IRIS MACHIN, ETC., APPELLANT,
v.
WALGREEN CO. A FOREIGN CORPORATION, APPELLEE
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Iris Machín appealed a jury verdict assigning her 45% comparative negligence after her daughter Melanie suffered injury from a wrongly dispensed medication at Walgreen pharmacy. The Florida appellate court affirmed, holding that parents have a duty to verify prescribed medications match what is dispensed, even when they do not speak English.
The court affirmed the jury's finding of comparative negligence, holding that parents have a continuous duty as ordinary, prudent persons to supervise their young children and to take available precautions to protect them. Machín had a clear opportunity to verify the medication through the data sheet and container, and her failure to do so constituted negligence regardless of her lack of English language ability.
[1] Parents have a continuous duty to supervise and protect children too young to care for themselves.
[2] Individuals have a duty to take available precautions to protect children under their care.
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Join FLexlaw to unlock all legal intelligence“parents have a constant and continuous duty as ordinary, prudent persons to watch over, supervise, and protect their children who are too young to exercise judgment to care for themselves”
Establishes the fundamental parental duty that forms the basis for holding Machín negligent
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Join FLexlaw to unlock all legal intelligenceMachín took her 3-month-old daughter to a pediatrician who prescribed Nystatin oral suspension for thrush. A Walgreen pharmacist incorrectly dispensed…
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FLETCHER, Judge.
Iris Machín, on behalf of her daughter Melanie, has appealed a final judgment, arguing that there was insufficient evidence to support the assessment of 45% comparative negligence on part of Machín. We affirm the final judgment.
Machín took her 3-month-old daughter to her pediatrician for treatment of a mouth ailment. The pediatrician diagnosed Melanie as having thrush, a common children's yeast infection, for which she prescribed Nystatin, an antifungal oral suspension. Machin took the prescription to a Walgreen pharmacy to be filled. The Walgreen pharmacist incorrectly dispensed Triotann, the generic substitute not for Nystatin, but for the antihistamine-decongestant Rynatan. Along with the Triotann dispensed to Machin, the Wal-greeris pharmacist provided Machin with a data sheet advising that she was receiving Triotann and that it is a generic substitute for Rynatan. Nowhere on the data sheet (or the medicine container) did there appear the name Nystatin.
Machin gave the erroneously dispensed medicine to her daughter without first assuring — by reading the data sheet or having it read for her1' — that the actually dispensed medicine was the one her pediatrician prescribed. Melanie stopped eating and developed sleep problems. The thrush worsened. When this was reported to the pediatrician she discovered that the Walgreen pharmacist had dispensed the wrong medication. Removed from the wrong medication and properly treated, Melanie’s thrush infection disappeared quickly, but she continued to experience a lack of appetite and sleeping disorders for months thereafter.
At trial Walgreen contended that Ma-chin was negligent by paying no attention to the data sheet, an examination of which would have quickly informed Machin that the prescription was not what the doctor ordered. Machin testified that she trusted her pediatrician and the pharmacy and therefore had no duty to do anything to assure that she was feeding her child the correct medicine.
The jury found Machin comparatively negligent to the extent of 45% fault for her daughter’s condition.
The trial court denied Machin’s renewed motion for directed verdict and entered judgment accordingly.
First, we state the obvious: that parents have a constant and continuous duty as ordinary, prudent persons to watch over, supervise, and protect their children who are too young to exercise judgment to care for themselves. Orlando Sports Stadium Inc. v. Gerzel, 397 So. 2d 370 (Fla. 5th DCA 1981).
Persons chargeable with a duty of care and caution toward children must take the precautions which are available to them. Bagdad Land & Lumber Co. v. Boyette, 104 Fla. 699, 140 So. 798 (1932).
Here, Machin was clearly in the position to assure that the dispensed medication was that prescribed by the pediatrician. She was handed a document, Walgreeris data sheet, containing the information that would have informed her that the medicine dispensed was not the right one. The name Nystatin was not to be found on the data sheet, whereas the name Rynatan and its generic, Triotann, were. The principal purpose of such data sheets is to inform the purchaser which medicine is being placed in his or her hands so that the purchaser can be assured that the prescription has been filled properly.
Machin also contends that she was not negligent because she was not aware of the name of the medicine prescribed by the pediatrician. This does not relieve her from her parental duty. It was incumbent upon her to take the simple steps of inquiring of the pediatrician the name of the prescribed medicine, checking the data sheet and the container of the actually dispensed medicine, then contacting her pediatrician when she discovered (as she would have done) the discrepancy.
We are not here faced with a situation in which a pediatrician prescribed the wrong medicine, which would have given the parent little or no opportunity to assure that the child was receiving the correct medicine. Rather we are dealing here with a situation in which the parent had the clear opportunity to perform her parental duty but did not do so. Accordingly we affirm the final judgment.
Affirmed.
. Machin does not read or speak English, a fact which does not dilute or negate any duty she has toward Melanie.
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Jannette Ramos v. State, 89 So. 3d 1119 (Fla. 1st DCA 2012)…blish the culpable negligence necessary to sustain her conviction for manslaughter of a child.1 Florida imposes upon parents the responsibility to superase and protect their children who are too young to care for themselves. Machin v. Walgreen Co., 835 So. 2d 284 (Fla. 3d DCA 2002). Here, the legal responsibility for the care of the youngest of Ramos’s five children, Nathan Cook, nineteen months old at the time he drowned, fell squarely upon her as his immediate caregiver. Mere negligence in the care of one’…
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Archbishop Coleman F. Carroll High Sch., Inc. v. Maynoldi, 30 So. 3d 533 (Fla. 3d DCA 2010)…toxic combination of minors, residential open house parties, and alcoholic beverages, the legislature has not been silent. Parents and guardians are primarily responsible for the supervision of them minor children, of course. Machin v. Walgreen Co., 835 So. 2d 284, 285 (Fla. 3d DCA 2002) (“parents have a constant and continuous duty as ordinary, prudent persons to watch over, supervise, and protect their children who are too young to exercise judgment to care for themselves.”); K.C. v. A.P., 577 So. 2d 669, 6…
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Jule Urban Cybroski v. Wright, 927 So. 2d 1089 (Fla. 4th DCA 2006)…Fla.1982). Cybroski brought this suit based on the duty of care parents have to protect their children from harm, alleging that Melanie’s injuries could have been prevented had her mother ensured she utilized a seat belt. See Machin v. Walgreen Co., 835 So. 2d 284, 285 (Fla. 3d DCA 2002) (“[Pjarents have a constant and continuous duty as ordinary, prudent persons to watch over, supervise, and protect their children who are too young to exercise judgment to care for themselves.”). In granting summary judgment…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bagdad Land & Lumber Co. v. Boyette, 104 Fla. 699 (Fla. 1932)
- Orlando Sports Stadium, Inc. v. Gerzel, 397 So. 2d 370 (Fla. 5th DCA 1981)