Docken v. Ciba-Geigy

790 P.2d 45 (1990)

101 Or.App. 252

Catherine M. DOCKEN, Personal Representative of the Estate of Terry Vern Docken, Appellant, v. CIBA-GEIGY, a New York Corporation; Kaiser Foundation Health Plan of Oregon, Inc., an Oregon Corporation; Northwest Permanente, P.C., and Tim Carey, M.D., Defendants, and Kaiser Foundation Hospitals, Inc., a California Corporation Doing Business in Oregon, Respondent.

A8505-03039; CA A50770.

Court of Appeals of Oregon.

Argued and Submitted November 17, 1989.

Decided April 18, 1990.

Reconsideration Denied June 13, 1990.

Review Denied July 10, 1990.

*46 Lance D. Perdue, Lake Oswego, argued the cause and filed the brief for appellant.

John R. Faust, Jr., Portland, argued the cause for respondent. With him on the brief was Schwabe, Williamson & Wyatt, Portland.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

In this negligence action, plaintiff appeals from a judgment entered on a jury verdict for Kaiser Foundation Hospitals, Inc. (defendant)[1] and assigns error to the jury instructions; defendant cross-assigns as error the court's denial of its motion for a directed verdict. We agree that defendant was entitled to a directed verdict and affirm the judgment. Because of that disposition, we do not reach plaintiff's assignments of error.

Plaintiff is personal representative of the estate of her deceased son, Terry. In November, 1979, defendant's pharmacy filled a prescription for Imipramine[2] for plaintiff's older son, Tim, according to the physician's instructions. In August, 1983, Terry swallowed several tablets of the drug and died. Plaintiff brought a wrongful death action.

This is the second appeal in this matter. In the first, we ruled on whether a drug manufacturer, pharmacy or prescribing physician can be liable for harm to anyone other than the person for whom the drug was prescribed, if injury results from that other person's taking the drug. Docken v. Ciba-Geigy, 86 Or. App. 277, 739 P.2d 591, rev. den. 304 Or. 405, 745 P.2d 1225 (1987). We held that there is liability if the harm suffered from the other person's taking the drug is a foreseeable risk and that we could not say as a matter of law that the harm suffered by Terry was not foreseeable. We also held that the complaint alleged facts from which a jury could find the defendants negligent. 86 Or. App. at 281, 739 P.2d 591.

The case then went to trial, and the court denied defendant's motion for a directed verdict. The jury found for defendant,[3] and this appeal followed. Defendant argues that, whether or not plaintiff is correct that the trial court gave erroneous instructions, we should affirm. It contends that plaintiff provided no evidence of one of the elements of her cause of action, a breach of the standard of care in the community, and so the case should not have gone to the jury.

Plaintiff argues that the jury could determine without the aid of experts that a prescription drug is dangerous and requires a pharmacist independently to warn of its hazards, regardless of the instructions of the prescribing physician or any statutory requirements to warn. Plaintiff provided evidence that an overdose of Imipramine was potentially fatal and that there was no warning by defendant's pharmacy. Plaintiff argues that, with that evidence, *47 the jury could find that a duty to warn existed and was breached. Defendant argues that expert testimony is required to prove the community standard of care for a pharmacist and that plaintiff provided no evidence that the community standard was not met. Because no expert testified that the standard in the professional community required a pharmacist to warn of the hazards of this prescription drug, defendant argues that no breach of due care could be found, even if the warning were lacking.

Although no Oregon appellate court has decided the standard of care for a pharmacist in a negligence action, the Supreme Court stated generally in Getchell v. Mansfield, 260 Or. 174, 179, 489 P.2d 953 (1971):

"In most charges of negligence against professional persons, expert testimony is required to establish what the reasonable practice is in the community. The conduct of the defendant professional is adjudged by this standard. Without such expert testimony a plaintiff cannot prove negligence. The reason for this rule is that what is reasonable conduct for a professional is ordinarily not within he knowledge of the usual jury."

Nonetheless, in some situations, the breach of a standard of care is within the knowledge and experience of lay persons, and expert testimony is not necessary. One such example would be a surgeon operating without sterilization of his instruments. 260 Or. at 180, 489 P.2d 953. Most jurisdictions have not found any common law duty of pharmacists independently to warn of the hazards of drugs prescribed by physicians, preferring to leave decisions about warning requirements to legislatures and the prescribing physicians. See, e.g., McKee v. American Home Products Corp., 113 Wash. 2d 701, 708, 782 P.2d 1045 (1989); Jones v. Irvin, 602 F. Supp. 399, 401 (S.D.Ill. 1985); Ingram v. Hook's Drugs, Inc., 476 N.E.2d 881, 887 (Ind. Ct. App. 1985). Those courts expressed concern that pharmacists not be expected to second-guess physicians. Jones v. Irvin, supra, 602 F. Supp. at 401.

In the earlier appeal in this case, we did not discuss what evidence would be required to show that the standard of care had not been met. Considering the complex relationship between a physician, the patient and a pharmacist, we hold that an expert must testify as to the standard of care in the community for warning of dangers of a prescription drug before a jury may determine that such a standard was breached.[4] The only expert evidence consisted of testimony that it was standard practice for defendant to use a label to warn that an overdose of Imipramine was potentially fatal. There was conflicting evidence about whether that warning was given in this case. The testimony describing defendant's pharmacy's usual practice, however, only referred to the practice of one facility in a large city: Portland. Defendant's practice may have reflected care in excess of the standard practice in the community and, if so, a failure to follow that practice would not be evidence of a breach of due care for a pharmacist in the community. Plaintiff's prima facie case was deficient, and defendant's motion for a directed verdict should have been granted.

Affirmed.

NOTES

[1] Defendant Ciba-Geigy was dismissed from the case before trial. At the conclusion of the evidence, the court granted defendants Kaiser Foundation Health Plan of Oregon, Northwest Permanente, P.C., and Dr. Tim Carey directed verdicts. Plaintiff appeals only the judgment for Kaiser Foundation Hospitals, Inc.

[2] Imipramine is the generic name for the drug with the trade name of Tofronil, manufactured by Ciba-Geigy, with which defendant's pharmacy filled the prescription.

[3] The trial court granted directed verdicts for the other defendants. See n. 1, supra.

[4] We do not comment on the standard of care in other circumstances, such as when a pharmacist sells a nonprescription substance or when a pharmacist has personal knowledge of a customer's medical condition. See Krueger v. Knutson, 261 Minn. 144, 111 N.W.2d 526 (1961) (nonprescription substance); see also Hand v. Krakowski, 89 A.D.2d 650, 453 N.Y.S.2d 121 (1982) (personal knowledge of customer's medical condition).