noting that the purpose of a similar statute that defined the distribution or use of blood as a service and not a sale “is to avoid application of the doctrine of strict liability ... thereby promoting the constant availability of an adequate supply of blood”
How later courts described this case
- noting that the purpose of a similar statute that defined the distribution or use of blood as a service and not a sale “is to avoid application of the doctrine of strict liability ... thereby promoting the constant availability of an adequate supply of blood”
- determining that a pharmacist’s conduct in filling a prescription is a service, and thus a pharmacy is immune from strict liability
- refusing to hold pharmacists liable under the strict product liability doctrine because “the pharmacist is engaged in a hybrid enterprise, combining the performance of services and the sale of prescription drugs”
- “[In Sindell we] held that if the plaintiff joined in the action the manufacturers of a substantial share of the DES which her mother might have taken, the injustice of shifting the burden of proof to defendants to exonerate themselves would be significantly diminished.”
Written by the judges who cited it.
The opinion
LUCAS, J.
I concur in the majority’s resolution of the issues involving the claims against Squibb, In addition, I concur in the conclusion reached by the majority that the pharmacy here may not be held strictly liable for alleged defects in a medication that it provided pursuant to a physician’s prescription.
I believe that Justice Gradin’s concurrence, which analyzes why strict liability has no place in this context, is well taken. A pharmacist, whose role in dispensing medication is severely circumscribed by statutory scheme, and whose preparation of a drug may be undertaken only pursuant to prescription, should not be held liable when the prescriber is himself excepted from liability.
Unlike Justice Grodin, however, I find merit in Justice Mosk’s statutory approach as well. Subdivision (b) of section 4046 of the Business and Professions Code states “Pharmacy practice is a dynamic patient-oriented health service that applies a scientific body of knowledge to improve and promote patient health by means of appropriate drug use and drug-related therapy.” The Legislature has also announced that “In recognition of and consistent with the decisions of the appellate courts of this state, [it] hereby declares the practice of pharmacy to be a profession.” (Bus. & Prof. Code, § 4046, subd. (a).) I believe that the Legislature had in mind more than mere hortatory language when it defined the practice of pharmacy in terms of the provision of service.
Both parties agree, as the majority reiterates, that the sale of a service does not render one liable “ ‘in the absence of negligence or intentional *688 misconduct.’ ” (See ante, p. 677.) The dissent matches Health and Safety Code section 1606, which states that transactions involving blood and blood products used for transfusions involve a service and are not to be viewed as a sale “for any purposes whatsoever,” against the reference in section 4046 which characterizes the practice of pharmacy as a service. Chief Justice Bird concludes that because of the absence of language stating such transactions are not to be regarded as sales, one cannot discern in section 4046, subdivision (b), an intent to exempt a pharmacist’s dispensing of prescription drugs from the reach of strict liability. I disagree. If services generally are recognized to be so exempted, and the Legislature specifically deems the practice of pharmacy a service, it seems to me that the only likely means of giving effect to his language is to interpret it in the same manner as that used for Health and Safety Code section 1606. The dissent gives no alternative interpretation for the statutory language nor does it explain how its approach renders subdivision (b) anything other than vacant jargon.
In summary, I join in the holding that pharmacists should not be held strictly liable for defects in drugs that they dispense at the direction of another. 1
Like Justices Mosk, Grodin, and Kaus, I agree that the question of strict liability for drug manufacturers is not and need not be addressed here.