The Common Law Tradition
• Stare decisis
• Law made by judges, statutes
• Criminal vs. Civil Law
- public interests vs. individual interests (#1)
- basis for liability (#2, #3)
- the burden of proof
- remedies available
Tort Law
• “An infringement or invasion of a personal
right which the court has chosen to protect”
• “An instrument for apportioning losses
between the unfortunate victim, the person
whose act caused the harm, and others”
Development of the Tort
• For a society to function, people should not
intentionally harm one another
• Reasonable care needs to be exercised in all
daily activities
• Blameless victims should not be unduly
burdened
• Consequential injuries = direct injuries
Basis for Tort Liability
• FAULT: Strict (#4) vs. Vicarious (#5, #6)
• Negligence:
- duty of care (#7)
- breach of duty (“reasonableness” test) (#8)
- damage occurred (#9)
- remoteness of damage (#10)
- contribution (#12)
Professional’s Duty to Care
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Contractual Duty
Fiduciary Duty (#13)
Product Liability (#14)
Negligent Misrepresentation
Standards of Practice (#15)
Implications of Professional Status
Case #1
X is a pharmacist. One night while driving
under the influence of alcohol, X crashes
into Y’s car, causing significant damage to
Y’s spinal column. As a result, Y is no
longer able to walk without the aid of a
walker, and significant pain.
Case #2 & #3
Case 2:
A is a pharmacist who carelessly drops a log
on a road and does not bother to remove it.
After dark, B’s horse trips over the log and
is seriously injured.
Case 3:
A is a Scots pharmacist who careless tosses a
log at a horse, causing serious injury.
Case #4
A landowner stores water in a large cistern.
The cistern is accidentally punctured by a
visitor’s truck, thereby flooding and
damaging a neighbour’s building. Evidence
shows the landowner did everything
reasonably expected to maintain the cistern
against damage.
Case #5
X is a pharmacist-owner. Y is a staff
pharmacist. Y dispenses the wrong drug to
Z, even though X has provided a reasonable
training program and a work environment
that meets all required standards of practice.
Case #6
X is a pharmacist-owner. Y is a staff
pharmacist. A is Y’s technician. A
dispenses the wrong drug to Z.
Would the case be different if Y were a relief
pharmacist?
Case #7
A motorcyclist collides with an automobile
and later dies from the injuries. At the time
of the accident a woman who is 5 months
pregnant sees the accident. Medical
evidence agrees that the shock of witnessing
the accident probably lead to her child being
stillborn. Can she bring a suit against the
estate of the motorcyclist?
Case 8 & Case 9
Case 8
X is a pharmacist owner and dispenses the
wrong drug to Z
Case 9
X is a pharmacist owner and dispenses the
wrong drug to Z. Z suffers an anaphylactic
reaction but does not die.
Case 11
Z takes a drug dispensed by X. A week later,
Z develops an anaphylactic reaction and
suffers damage. Z produces evidence that
the drug can produce delayed anaphylactic
responses.
Case 12
X dispenses the wrong drug to Y. Y
comments to a friend, “Oh, this doesn’t look
like the regular drug I always get.” Y dies
48 hours later.
Case 13a
X, a pharmacist, tells Y, a patient, that
itchiness on his leg is likely due to poison
oak. 72 hours later, Y dies of necrotizing
fasciitis.
Case 13b
X advises Y that the itchiness on his leg may
be due to poison oak. X suggests calamine
lotion, but cautions that if the itching hasn’t
resolved in 24-26 hours, to contact a
physician. 72 hours later, Y dies of
necrotizing fasciitis.
Case 14
X sells a dark green bottle of ginger beer to Y.
After drinking half the bottle, Y becomes
violently ill. Upon examination, the bottle
is discovered to contain the remnants of a
decomposed snail.
Donohue v. Stephenson
Riff v. Morgan Pharmacy
X dispenses Cafergot suppositories for Y.
Instructions were “1 supp q4h for
headache”. No additional information was
given from either MD or RPh. The package
insert clearly stated that no more than 2
supps/headache and 5 supps/week were to
be used. Patient subsequently suffered
harm.