Pharmacies and pharmacists better watch out and clearly read the handwriting of doctors who are not known for legibility. Giving out the wrong medicine may give rise to liability for damages.
In the case of MERCURY DRUG CORPORATION, et al. vs. DE LEON, G.R. No. 165622 October 17, 2008, a judge noticed that his left eye was reddish. A doctor friend prescribed to him the drugs “Cortisporin Opthalmic” and “Ceftin.” The good judge went to a branch of Mercury Drug Store Corporation to buy the prescribed medicines. He showed his prescription to a pharmacist assistant. He subsequently got the medicine handed over by the assistant.
When he applied the drop on his left eye, he felt “searing pain.” He rinsed it with water but the pain did not subside. He then discovered that he was given the wrong medicine or “Cortisporin Otic Solution.”
The judge returned to the same Mercury Drug branch. The assistant did not apologize and instead replied that she was unable to fully read the prescription. Her supervisor was the one who apologized and merely informed the judge that they did not have on stock the medicine that he needed.
The judge wrote Mercury Drug, through its president about the incident but did not get a response. Two sales persons went to his office and informed him that their supervisor was busy with other matters. With no apology or explanation forthcoming, he filed a complaint for damages against Mercury Drug. Hell hath no fury like a judge wronged.
Mercury Drug argued that the proximate cause was the judge’s own negligence. And that he should have first read and checked to see if he had the right eye solution. Also, Mercury Drug explained that there is no available medicine known as “Cortisporin Opthalmic” in the Philippine market. What was written on the piece of paper De Leon presented was “Cortisporin Solution” and the pharmacist assistant gave him the only available “Cortisporin Solution” in the market. Which leads one to ask, since his eye was troubling him, how could you expect him to read the label?
Moreover, Mercury argued that the judge failed to present a proper prescription as it lacked the required information concerning the attending doctor’s name and license number. He was entertained only because he was a regular customer of their branch.
The judge won damages in the lower court consisting of Php 153.25, the value of the medicine, Php 100,000.00 as moral damages, Php 300,000.00 as exemplary damages and attorney’s fees of P50,000.00. Mercury Drug appealed. The Court of Appeals dismissed the case on procedural grounds. Upon elevation to the Supreme Court, it upheld the decision of the lower court with modification.
The High Court found that the petitioners “failed to exercise the highest degree of diligence expected of them.” It held that petitioners can not exculpate themselves from any liability by alleging that judge should have checked the medicine that he got. It held that as “active players in the field of dispensing medicines to the public, the highest degree of care and diligence is expected of them.”
The court cited U.S. jurisprudence where it was ruled that “the profession of pharmacy demands care and skill, and druggists must exercise care of a specially high degree, the highest degree of care known to practical men. In other words, druggists must exercise the highest practicable degree of prudence and vigilance, and the most exact and reliable safeguards consistent with the reasonable conduct of the business, so that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicines.” The US Supreme Court has likewise “ruled that a druggist that sells to a purchaser or sends to a patient one drug for another or even one innocent drug, calculated to produce a certain effect, in place of another sent for and designed to produce a different effect, cannot escape responsibility, upon the alleged pretext that it was an accidental or innocent mistake. His mistake, under the most favorable aspect for himself, is negligence. And such mistake cannot be countenanced or tolerated, as it is a mistake of the gravest kind and of the most disastrous effect.”
In “holding himself out as competent to handle drugs, having rightful access to them, and relied upon by those dealing with him to exercise that high degree of caution and care called for by the peculiarly dangerous nature of the business, cannot be heard to say that his mistake by which he furnishes a customer the most deadly of drugs for those comparatively harmless, is not in itself gross negligence.”
In fact, two local decided cases support this position. In United States v. Pineda, complainant mixed with water what he thought and believed was potassium chlorate for his race horses. The substance turned out to be barium chlorate and the race horses died of poisoning only a few hours after. In Mercury Drug Corporation v. Baking, Sebastian Baking presented his prescription for Diamicron, which the pharmacist misread as Dormicum. Baking was given a potent sleeping tablet, instead of medicines for his blood sugar. On the third day of taking the wrong medicine, Baking figured in a vehicular accident when he fell asleep while driving. This Court held that the proximate cause of the accident was the gross negligence of the pharmacist who gave the wrong medicine to Baking. The Court said there:
“x x x Considering that a fatal mistake could be a matter of life and death for a buying patient, the said employee should have been very cautious in dispensing medicines. She should have verified whether the medicine she gave respondent was indeed the one prescribed by his physician. The care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands.”The Court stated that “In cases where an injury is caused by the negligence of an employee, there instantly arises a presumption of law that there has been negligence on the part of the employer, either in the selection or supervision of one’s employees. This presumption may be rebutted by a clear showing that the employer has exercised the care and diligence of a good father of the family. Mercury Drug failed to overcome such presumption.” Note that this is at least the second case involving the same corporation.
The Court stated that the petitioners failed to live up to high standard of diligence expected of them as pharmacy professionals and they were grossly negligent in dispensing ear drops instead of the prescribed eye drops. Worse, they have once again attempted to shift the blame to their victim. As a buyer, the judge relied on the expertise and experience of Mercury Drug and its employees in dispensing to him the right medicine. The buyer and seller do not stand at arms length. There exists an imperative duty on the seller or the druggist to take precaution to prevent death or injury to any person who relies on one’s absolute honesty and peculiar learning. As the Court has emphasized:
“ x x x The nature of drugs is such that examination would not avail the purchaser anything. It would be idle mockery for the customer to make an examination of a compound of which he can know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug called for.”The defense that the only available Cortisporin solution in the market was given does not deserve consideration. The assistant could have easily verified whether the medicine she gave was the prescribed one or consulted her supervisor. Absent the required certainty, she could have refused the purchase.
The award of damages was proper but the Court reduced the moral and exemplary damages to P50,000.00 and P25,000.00 respectively.
In closing, the Court opined that the drugstore business is imbued with public interest. And that there can be no form of negligence which can jeopardize the health and safety of its loyal patrons. Moreover, a pharmacy owes a customer not only the “duty of reasonable care, but it is also duty-bound to accord one with respect.”
The foregoing is not an uncommon occurrence. A colleague once got medicine for arthritis by mistake instead for her thyroid problem. But in her case, she got to wonder how come her joints were getting to feel better.
The Court in this case recognized how the outcome of such an error could be much much worse. And the drug company has no one to blame but itself. That is one prescription it should not forget.
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