noting 20 the duty of pharmacists to fill prescriptions “in accordance with the doctor’s orders”
How later courts described this case
- noting 20 the duty of pharmacists to fill prescriptions “in accordance with the doctor’s orders”
- the existence of a duty is a question of law
Written by the judges who cited it.
Distinguished
Distinguished by Moon v. Guardian Postacute Services, Inc., 116 Cal. Rptr. 2d 218 (2002)
Ken attempts to circumvent the holding in Huggins by claiming that his claim is distinguishable because he had a preexisting relationship with
The opinion
MOSK, J., Dissenting.
In this claim of negligent infliction of emotional distress, the issue in dispute is whether a pharmacy owes parents a duty of *134 care when it fills a prescription for their two-month-old infant. “Damages for severe emotional distress ... are recoverable in a negligence action when they result from the breach of a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 590 [ 257 Cal.Rptr. 98 , 770 P.2d 278 ].)
I agree with the Court of Appeal that the parents in this case can properly establish that the pharmacy owed them a duty of care, and that the trial court erred in granting summary judgment in favor of the defendants.
A pharmacist has a statutory duty to correctly label the bottle in which medicine is dispensed. Business and Professions Code section 4047.5 prohibits a pharmacist from dispensing any prescription except in a container correctly labeled with, among other items, the directions for use of the drug. 1
The pharmacy in the present case directed the parents to give their two-month-old infant five times the proper dose of prescribed medicine. No one would dispute that if a pharmacist dispensed medicine to an adult in a container that incorrectly directed a dangerous dose of the drug be taken, the adult could recover from the pharmacist for negligent infliction of emotional distress. When the drug is prescribed for a two-month-old infant who can neither read nor administer the drug, the duty to instruct on the use of the drug does not simply disappear. Section 4075.5 still requires that the pharmacist correctly label the drug with directions for use. The only rational purpose of the requirement in such circumstances is to instruct the parent in the proper use of the drug. Thus there is a statutory duty to the parents to provide accurate instructions.
The pharmacy not only had a statutory duty to provide accurate directions for the use of the medicine, but there was also a practical, necessary relationship between the pharmacy and the parents. The case is comparable to Burgess v. Superior Court (1992) 2 Cal.4th 1064 [ 9 Cal.Rptr.2d 615 , 831 P.2d 1197 ], in which we declared that an obstetrician owed a duty of care to a mother for the safe delivery of her child, so that injury to the child during delivery breached a duty of care to the mother. Because of the “realities of pregnancy and childbirth . . . any treatment for [the child] necessarily implicated [the mother’s] participation. . . .” (Id., at p. 1076.) Similarly, here, any prescription for the two-month-old child necessarily implicated the *135 parents’ participation, as administration of the prescribed medicine obviously could not be performed by the infant.
This is not a case like Schwartz v. Regents of University of California (1990) 226 Cal.App.3d 149 [ 276 Cal.Rptr. 470 ], upon which the majority rely. There the provision of psychiatric services to a child did not establish a duty of care towards the child’s father, because there it was not the case that the service to the child could not be accomplished but for the active involvement of the father. Here, on the other hand, the parents were necessary parties to the administration of the medical services offered by the pharmacy.
The majority suggest that only a patient of a medical caregiver can maintain a cause of action for negligent infliction of emotional distress caused by the negligence of the caregiver. (Maj. opn., ante, pp. 131-132.) However, Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 [ 167 Cal.Rptr. 831 , 616 P.2d 813 , 16 A.L.R.4th 518 ] held that a man who was not the patient of a doctor could make out a claim for negligent infliction of emotional distress because the doctor advised the plaintiff’s wife that she had venereal disease. The husband’s well-being was in no way the “end and aim” of the doctor’s relationship with the wife, but the husband, nonetheless, was considered the direct victim of the doctor’s negligence in erroneously diagnosing venereal disease because the misdiagnosis necessarily involved him directly. I see the same direct impact on the parents of the infant who was injured by the negligence of the pharmacy in this case.
Because of the statutory duty imposed on pharmacists to label drugs correctly and give correct instructions for their use, and because of the practical relationship between the parties, a duty is established between the pharmacy and the parents.
The majority state policy reasons for denying recovery to the parents in this situation. They express typical, well-worn anxiety over expanding liability and increasing medical malpractice insurance costs. (Maj. opn., ante, at p. 133.) I fail to see how the imposition of liability here would be any novelty; a statutory duty to provide accurate instructions was breached and the persons to whom the instructions were directed seek compensation. They deserve a trial, not a summary denial.
Kennard, J., concurred.
Section 4047.5 provides, in pertinent part: “A pharmacist shall not dispense any prescription except in a container correctly labeled with the following: [¶]... [¶] (b) The directions for the use of the drug.”