M & G Convoy, Inc. v. Somerset Drug Co.
| Decision Date | 28 July 1982 |
| Docket Number | 426 Civil 1981 |
| Citation | 43 Pa. D. & C.3d 85 |
| Parties | M and G Convoy Inc. v. Somerset Drug Company |
| Court | Pennsylvania Commonwealth Court |
Preliminary objections to complaint.
Richard J. Catalano, for plaintiff.
Arthur A. Asti, Jr., for defendant Alfred J. Poggi M.D.
This trespass action is here on preliminary objections of defendant Poggi M.D. demurring to the complaint on the ground that it alleges no physician-patient relationship between said defendant and plaintiff and therefore no duty of care to plaintiff arising from the prescription of medication by defendant for plaintiff's employee on which the action is based, and in the alternative, moving to strike the complaint's ad damnum clause for incorrectly alleging the amount of damages claimed in violation of Civil Rule 1044(b).
On or about 1:30 a.m. on September 18, 1979, on U.S. Route 209 near West Falls, Pike County, Pa., additional defendant Dancho as the employee of plaintiff was operating a tractor-trailer (car carrier), when he dozed off and collided with another tractor-trailer, causing damage to plaintiffs car carrier and damage to the other tractor-trailer and injuries to its driver for which plaintiff was compelled to pay, for which this action is brought. Additional defendant Dancho's dozing off and causing the collision and damages were caused solely by medication which he had been taking which had been prescribed by defendant Poggi, Dancho's physician, and purchased from Somerset Drug Company.
Count I of the complaint is against defendants Somerset Drug and Wagner (Waggoner) Somerset Drug's employee, and is not presently involved. Count 2 of the complaint is against Poggi and is based on the following averments of negligence:
[1]
The essence of the physician's preliminary objections is that his duty was only to his patient (Dancho) who is not a plaintiff, that he owed no duty to plaintiff who was the patient's employer, and therefore that plaintiff has no cause of action against the physician.
Counsel for the parties begin with a disagreement over which section of the Restatement (Second) of Torts correctly states the duty applicable to this case which is based on the alleged negligence of a physician in failing to warn a patient of a prescribed drug's side effect. Plaintiff's counsel relies on section 388 which provides as follows:
He reasons that the drug prescribed by defendant physician is a " chattel" (an article of personal property) supplied by the physician through a third person (defendants Somerset Drug and Wagner); that the physician knowing of the tendency of the drug to create drowsiness must also know and foresee that use thereof by a driver of a motor vehicle can impair fitness to drive and cause collision with resulting personal injury and property damage to the user of the drug and others on the highway; that the user and those others are persons whom the physician should expect will be endangered by an operator under the drug's influence; that the operator is not likely to realize the dangerous character of the drug unless informed of it, and that therefore use of the drug by such operator while driving is a probable use which the physician in the exercise of reasonable care should have foreseen and guarded against by informing the patient of the drug's effects.
Counsel for defendant contends that section 388 is applicable only in favor of a person who is directly injured by the chattel (drug), not to injuries more remotely caused by an intervening third force (here, the vehicle operator); and that since plaintiff was not injured by the " actual use of the drug" plaintiff has no claim against the physician. He also contends that the physician's " duty was to plaintiff's driver (patient) and no one else." Defense counsel further contends that it is section 323 (formerly section 325) of the Restatement which applies and which provides as follows:
He then reasons that the physician, instead of being the supplier of the chattel within section 388, is the renderer of services under section 323, whose terms make him " subject to liability to the other [the patient] for physical harm" resulting from lack of reasonable care in performing the services, and not to liability to third persons such as plaintiff; and again concludes that the duty of the person rendering service is only to the person served (patient).
Undoubtedly, there is a significant difference in the language in the two sections describing the persons to whom liability extends; section 388 subjects the actor to liability " to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use," whereas section 323 subjects the actor to liability " to the other" person to whom the services were rendered without mentioning others who might be endangered. Assuming (without deciding) that section 323 does not extend the physician's liability beyond the patient, and that it is important to determine whether the prescribing physician is a chattel supplier (directly or through a third person) or a performer of services, the plain truth is that he is both; that compels us to say that he is subject to the liability imposed by section 388 insofar as he furnishes a drug or device to his patient; and since that section subjects him to liability not only to his patient but to anyone " whom the supplier should expect... to be endangered by its probable use," a physician may be liable for all of the consequences of which his negligently prescribing a drug for his patient without warning of known side effects are a legal cause. [2]
We cannot credit the defense argument that the phrase " endangered by its [the drug's] probable use" refers only to danger from actual taking of the drug; consistent with the general rules of negligence, that language must be construed to encompass any person endangered either by taking the drug or by the resulting conduct of the person who takes it if the consequences are reasonably foreseeable to the supplier. Therefore Dancho's actions in operating the motor vehicle at the time of the collision, even if negligent, are not necessarily an intervening superseding cause under the applicable general rules of tort causation. The subcommittee note to section 3.28 of Draft Standard Civil Instructions states that the only proper inquiry is whether the first cause or force is a substantial factor in causing the damage claimed, whether viewed alone or in combination with some later causative event; the rule there stated is:
" A subsequent act is not a superseding cause insulating the defendant from liability if the defendant's negligence was a substantial contributing factor to the accident, either by creating or increasing the risk of harm itself or creating or increasing the risk of harm from subsequent acts of another." (Emphasis in original.) See: Ford v. Jefferies, 474 Pa. 588, 379 A.2d 116 (1977); Berkebile v. Nationwide Insurance Company et al. (No. 2), 40 Somerset L. J. 368 (1981). See also Restatement (Second) of Torts § 442B which provides as follows:
In this case, plaintiff's loss is sufficiently pleaded to create an issue of defendant's causal negligence for trial before a jury. This assumes of course that the evidence produced will be sufficient to warrant a finding that the patient would not...
To continue reading
Request your trial