Batiste v. American Home Products Corp.

• Decision Date: 05 January 1977
• Docket Number: No. 7619SC438,7619SC438
• Citation: 32 N.C.App. 1,231 S.E.2d 269
• Court: North Carolina Court of Appeals
• Parties: , 21 UCC Rep.Serv. 19 Alice M. BATISTE v. AMERICAN HOME PRODUCTS CORPORATION, a Delaware Corporation, et al.

Page 269

231 S.E.2d 269

32 N.C.App. 1, 21 UCC Rep.Serv. 19

Alice M. BATISTE v. AMERICAN HOME PRODUCTS CORPORATION, a Delaware Corporation, et al.

No. 7619SC438.

Court of Appeals of North Carolina.

Jan. 5, 1977 Certiorari Denied by Supreme Court April 5, 1977.

Mraz, Aycock, Casstevens & Davis by Gary A. Davis and L. Hunter Meacham, Jr., Charlotte, for plaintiff-appellant.

Golding, Crews, Meekins, Gordon & Gray by John G. Golding and C. Byron Holden, Charlotte, for Dr. Henry J. Ritchie, defendant-appellee.

Hartsell, Hartsell & Mills, P.A. and William L. Mills, Jr., Concord, for Pike's Drug Store, Inc., defendant-appellee.

MORRIS, Judge.

Plaintiff notes in her brief that the claims against defendant Ritchie which were dismissed are interrelated and, therefore, she discusses them together in her brief. We agree that they are sufficiently interrelated to allow single discussion and, accordingly, will follow plaintiff's format.

Plaintiff first argues that the issuance of a prescription for Ovral by defendant Ritchie to plaintiff constituted a transaction covered by those sections of the Uniform Commercial Code applicable to implied warranties of fitness and merchantability. G.S. 25--2--314 provides:

'(1) Unless excluded or modified ( § 25--2--316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

(2) Gods to be merchantable must be at least such as

(a) pass without objection in the trade under the contract description; and

(b) in the case of fungible goods, are of fair average quality within the description; and

(c) are fit for the ordinary purposes for which such goods are used; and

(d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

(e) are adequately contained, packaged, and labeled as the agreement may require; and

(f) conform to the promises or affirmations of fact made on the container or label if any.

(3) Unless excluded or modified ( § 25--2--316) other implied warranties may arise from course of dealing or usage of trade.'

G.S. 25--2--315 provides:

'Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section ( § 25--2--316) an implied warranty that the goods shall be fit for such purpose.'

The Uniform Commercial Code defines 'merchant' as '. . . a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction . . .' G.S. 25--2--104(1). A 'sale' is defined as a transaction consisting '. . . in the passing of title from the seller to the buyer for a price.' G.S. 25--2--106(1).

Plaintiff earnestly contends that the physician who issues a prescription for an oral contraceptive drug is a 'seller' within the meaning of the statute and that the issuance of the prescription constitutes passing title. She argues that the physician's role in the chain of distribution of drugs is admittedly unique but is a vital link in the chain. Because the physician is the only person vested with legal authority to place the drug manufacturer's product in the hands of the consumer, and unless the physician issues a prescription for the manufacturer's product, the manufacturer cannot long exist in the industry. Therefore, the plaintiff argues, the manufacturer is willing to and does expend large sums of money and a great amount of the time of its salesmen to place in the hands of physicians literature with respect to the particular drugs manufactured by it and samples of the drugs. All this is done to encourage the physician to prescribe the drug manufactured by it--to 'sell' the particular drug, as plaintiff would have it. While plaintiff's argument may be ingenuous, it is not, in our opinion, either factually or legally sound. The Uniform Commercial Code was designed to apply to transactions between a seller and a purchaser. Inherent in the legislation is the recognition that the essence of the transaction between the retail seller and the consumer relates to the article sold, and that the seller is in the business of supplying the product to the consumer. It is the product and that alone for which he is paid. The physician offers his professional services and skill. It is his professional services and his skill for which he is paid, and they are the essence of the relationship between him and his patient. To say that the issuance of a prescription for drugs, which prescription is to be filled by a pharmacist should the patient desire to follow the physician's suggestion, constitutes the transfer of title to the drugs in the formula in the prescription, is simply too unrealistic for serious consideration.

The fact remains that one does not normally go to a physician to purchase medicines or drugs or bandages or other items incidental to medical treatment. Plaintiff alleged in her complaint that she 'employed and consulted with' defendant in his professional capacity 'for the purpose of securing medical services and advice.' A case strikingly similar to the one now before us is Carmichael v. Reitz, 17 Cal.App.3d 958, 95 Cal.Rptr. 381 (1971). There plaintiff sought to recover damages from the defendant physician for pulmonary embolisms and thrombophlebitis allegedly caused by defendant's having prescribed Enovid in treating plaintiff for endometriosis. The Court first held that there was insufficient evidence of negligence to allow the case to go to the jury. It then considered and rejected plaintiff's contention that she should have been permitted to go to the jury on the theory that the defendant was, in a sense, a retailer of Enovid and that, therefore, strict liability in tort imposed on retailers of products should have been applied. The Court recognized that the doctrine of strict liability is no longer restricted to sales transactions, but also recognized that '. . . the distinction between a transaction where the primary objective is the acquisition of ownership or use of a product and one where the dominant purpose is to obtain services has not been obliterated. Where the services sought are professional in character, the distinction applies A fortiori.' Id. at 978, 95 Cal.Rptr. at 392. Further, the Court said that,

'. . . there is a difference in status or classification between those upon whom the courts have heretofore imposed the doctrine of strict liability and a physician who prescribes an ethical drug to achieve a cure of the disorders for which the patient has sought his professional services. The former acts basically as mere conducts to the distribution of the product to the consumer; the latter sells or furnishes his services as a healer of illnesses. The physician's services depend upon his skill and judgment derived from his specialized training, knowledge, experience, and skill. The physician prescribes the medicine in the course of chemotherapy only as a chemical aid or instrument to achieve a cure. A doctor diagnosing and treating a patient normally is not selling either a product or insurance.' Id. at 979, 95 Cal.Rptr. at 393.

See also Magrine v. Krasnica, 94 N.J.Super. 228, 227 A.2d 539 (1967), Aff'd, 100 N.J.Super. 223, 241 A.2d 637 (1968); Cheshire v. Southampton Hospital Association, 53 Misc.2d 355, 278 N.Y.S.2d 531 (1967); Foster v. Memorial Hospital Association of Charleston, W.Va. 219 S.E.2d 916 (1975).

We adhere to the general and majority rule that those who, for a fee, furnish their professional medical services for the guidance and assistance of others are not liable in the absence of negligence or intentional misconduct. We, therefore, hold that the court committed no error in dismissing the eleventh and twelfth claims for relief.

As to Pike's Drug Store, Inc.

Plaintiff's thirteenth claim for relief is grounded on negligence and seeks recovery against Pike's Drug Store, Inc., for its failure to warn plaintiff of '. . . the numerous risks, hazards, contraindications, harmful side effects and dangerous adverse reactions, including clotting of the blood, and severe strokes, inherent in the human use and consumption of said oral contraceptive drug of which said defendant knew or in the exercise of reasonable care should have known.' The complaint also alleges that defendant Pike's Drug Store, Inc., failed adequately to warn plaintiff that human consumption of the drug could cause clotting of the blood and severe strokes and that defendant sold the drug to plaintiff for her use when defendant knew or should have known that it was '. . . unreasonably and inherently dangerous, unsafe, unfit and defective for human use and consumption as a contraceptive drug . . .' and would likely cause harmful side effects including clotting of the blood and severe strokes.

Plaintiff cites authority for the proposition that a druggist has a duty to act with due, ordinary, care and diligence in compounding and selling drugs. We certainly do not disagree with this principle. Plaintiff also calls our attention to Spry v. Kiser, 179 N.C. 417, 102 S.E. 708 (1920), and Davis v. Radford, 233 N.C. 283, 63 S.E.2d 822 (1951). In Spry, the druggist had sold a bottle of rancid cottonseed oil for consumption by a baby rather than the sweet oil requested. The Court, in reversing a nonsuit, said:

"The public safety and security against the fatal consequences of negligence in keeping, handling, and disposing of dangerous drugs and medicines is a consideration to which no druggist can safely close his eyes. An imperative social duty requires of him such precautions...