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Kroger Supermarket Must Face a Potential Negligence Claim
An Indiana Kroger store must answer to a claim of negligence after a medication error led to the death of Sharon Clearwaters.
A doctor and his employer (not named in the suit) prescribed Levofloxacin to Sharon K. Clearwaters despite knowing she had a chronic heart condition for which she was taking Amiodarone and Warfarin, for which Levofloxacin is counter-indicated. The same day that Clearwaters filled the prescription at a Kroger pharmacy, she went into cardiopulmonary arrest and died after taking the Levoflaxacin. Clearwaters' estate filed suit on her behalf against the doctor and the Kroger store in November 2013.
In August 2014, the doctor and his employer settled with David Shelton, the personal representative of Clearwaters’ estate, and the suit was dropped against them. Kroger asserted a non-party defense in their answer. Kroger argued it is entitled to a credit or set-off from the health care providers’ settlement. Kroger filed a motion for partial summary judgment that was granted by Marion Superior Judge James B. Osborn.
The Court of Appeals overturned this ruling stating that Kroger is not a qualified health care provider and “Kroger, therefore, was not exempted from the Comparative Fault Act.” As such, “Kroger was not entitled to receive a credit or set-off with relation to Shelton’s settlement. Kroger can seek to limit its potential liability at the trial court on remand through its non-party defense.