Opinion
December 6, 1938. November 11, 1938.
APPEAL from an order of the circuit court for Washburn county: W.R. FOLEY, Circuit Judge. Affirmed.
Action begun May 6, 1937, by Kenneth S. Hoar against H.B. Rasmusen, a druggist, to recover damages for negligence. There was a special verdict. The court was of the opinion that the case had not been properly submitted, and upon motion of the plaintiff a new trial was ordered. From that order the defendant appeals.
In May, 1936, the plaintiff was under observation at the Wisconsin General hospital, where tests were made and it was found that his skin was allergic to a number of substances, including mercury. He was given a prescription which read: "Calamine Lotion c Phenol (1%). Quantity as desired. Sig. Apply as directed." This was written on a form which carried the name of the hospital.
In November, 1936, Hoar's wife took the prescription to the defendant's store in Spooner, and asked him to fill it. The defendant did not compound a lotion according to the prescription, but instead used a commercial compound which he knew to contain a slight amount of mercury, a substance sometimes used with beneficial effect in treating inflammation of the skin. In other respects the compound complied with the prescription. Rasmusen did not know that the medicine was to be used by a person allergic to mercury, and there was testimony by expert witnesses that such a condition is of very infrequent occurrence. The defendant did not inform Mrs. Hoar that the medicine which he delivered to her contained anything not called for in the prescription.
The lotion was first applied on the evening of November 9, 1936. During the night, new areas of inflammation appeared. Next morning Mrs. Hoar went to see Dr. Hering, who telephoned to Rasmusen and inquired whether the medicine contained mercury. Rasmusen replied that it did not, and Dr. Hering then told Mrs. Hoar to apply it more freely. The patient's entire body became blistered and inflamed, and he was unable to wear clothing for two months. In explanation of his conduct in falsely answering the doctor's question, Rasmusen testified that he believed it to be his duty not to disclose the ingredients prescribed by another physician.
The questions and answers of the special verdict were in part as follows: Did the defendant, Rasmusen, fail to use proper care in filling the prescription? Yes. Was the sickness and disability of plaintiff, Hoar, a natural and probable result of such failure on the part of defendant, Rasmusen, to use proper care in filling the prescription? Yes. Ought the defendant, Rasmusen, reasonably to have foreseen that injury or damage to another might probably follow from such failure to use proper care in filling the prescription? No.
The plaintiff moved the court to change the last answer, or in the alternative to enter judgment in his favor on the verdict, or in the alternative to grant a new trial. The defendant moved for judgment on the verdict. The court denied the motions for judgment and the motion to change the answer, and ordered a new trial for reasons which will be stated in the opinion. The defendant appeals.
For the appellant there was a brief by W.H. Stafford and Harold E. Stafford, both of Chippewa Falls, and oral argument by Harold E. Stafford.
For the respondent there was a brief by Douglas Omernik of Spooner, and oral argument by Glenn R. Douglas.
The doctor who wrote the prescription knew that Hoar was allergic to mercury. He directed the use of "Calamine Lotion c Phenol (1%)." The druggist who undertook to fill this prescription used a commercial compound known as cala-zinc lotion, containing a slight amount of mercury. This was similar to but not exactly the same as the formula for calamine lotion with phenol in the National Formulary, a reference book ordinarily consulted by pharmacists when filling prescriptions. The latter formula contains no mercury.
There were two applications of the lotion, the first on November 9, 1936. The result not being satisfactory, the patient consulted his family physician, Dr. Hering, who telephoned to the druggist and inquired whether there was mercury in the lotion. Upon being assured that there was not, the doctor assumed that the application had not been thorough and advised further use of the medicine. Within a short time the druggist got word to Dr. Hering that mercury was an ingredient, but in the meantime there had been a liberal application. The lotion was removed as speedily as possible, but serious illness followed.
The plaintiff elected a cause of action in tort rather than on contract. Although the facts concerning the doctor's inquiry and the druggist's false answer were fully brought out in the testimony, there was no indication either in the instructions or in the special verdict that the jury might find the druggist negligent in failing to correct his first mistake when he had the opportunity. In the third answer of the special verdict the jury found that Rasmusen could not foresee that injury might result from his carelessness in filling the prescription. In granting a new trial the court said in reference to that answer:
"Assuming that such answer is a proper one where only the filling of the prescription is taken into consideration, I think a different situation may well arise when it is considered that Dr. Hering made specific inquiry of the defendant as to the presence of mercury in the preparation. I think the jury would at least be warranted in concluding that after this inquiry had been made, the defendant should have then realized that it was important whether or not there was mercury in the preparation, and I think this matter should have been submitted to the jury, either by way of question or appropriate instruction, neither of which was done."
What the circuit court said fully justifies the order for a new trial. It is clear that the druggist misrepresented a fact when he delivered to Mrs. Hoar a proprietary compound containing mercury instead of calamine with phenol as described in the National Formulary. There was ample medical testimony to the effect that druggists are ordinarily expected to fill prescriptions according to the National Formulary or the United States Pharmacopœia, unless the contrary is indicated. See sec. 97.25 (2), Stats.
There was some testimony that variations from the standard formula were allowed by local custom, but it is clear that if such a custom could ever be an excuse, it was not in the present case, because the prescription came from a distant hospital where the prescribing doctor could not be expected to know of any such custom. Mrs. Hoar relied upon the druggist's unspoken representation that the medicine was exactly what the Madison doctor had ordered. Later, when the druggist repeated the representation in a different form by telling the doctor that there was no mercury in the medicine, Mrs. Hoar as agent for her husband again relied upon the truth of the druggist's representation.
One who makes a misrepresentation of fact or law is subject to liability to another for bodily harm which results from an act done by the other or by a third person in reliance upon the truth of the representation, if the one who misrepresents the fact knows that his statement is false and intends to induce or should realize that he may induce action by the other or by a third person which involves an unreasonable risk of bodily harm. Restatement, Torts, § 310. Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act. Restatement, Torts, § 291.
Although the druggist may have had reason to suppose that the medicine which he supplied was just as good as what the doctor prescribed, it must be held that the risk of harm from the act of making the substitution without informing the purchaser outweighs any possible utility that the act may have had. It is even more apparent that an unreasonable risk was involved in misinforming the physician. The druggist could easily have refused to answer at all if he believed that to be his duty. Either of the druggist's acts, therefore, constituted an actionable misrepresentation.
The circumstances of a pharmacist's or druggist's calling demand the exercise of a high degree of care and skill, such care and skill as an ordinarily prudent person would exercise under those circumstances, the highest degree of care and prudence consistent with the reasonable conduct of the business. The effect of a mistake may be swift and disastrous. There are many cases in which druggists have been held liable for injuries resulting from negligence in filling a prescription or supplying a remedy. Kennedy v. Plank (1904), 120 Wis. 197, 97 N.W. 895; Tremblay v. Kimball (1910), 107 Me. 53, 77 A. 405; Brown v. Marshall (1882), 47 Mich. 576, 11 N.W. 392; 29 L.R.A. (N.S.) 900; 31 A.L.R. 1336. In the present case the liability is more apparent than in most, because the substitution was deliberately made under the mistaken impression that the prescription could be changed in accordance with the druggist's judgment.
There is no motion to review the ruling of the trial court in declining to enter judgment in favor of the plaintiff notwithstanding the verdict. The plaintiff having elected to abide by the order granting a new trial, that order must be affirmed.
By the Court. — Order affirmed, and cause remanded for further proceedings according to law.