Mulder v. Parke Davis & Company

• Decision Date: 09 October 1970
• Docket Number: No. 42004,42004
• Citation: 45 ALR2d 920,288 Minn. 332,181 N.W.2d 882
• Parties: , 45 A.L.R.3d 920 Albert E. MULDER, trustee for heirs of Helen C. Mulder, Deceased, Appellant, v. PARKE DAVIS & COMPANY, Respondent, Frank E. Mork, Respondent.
• Court: Minnesota Supreme Court

Page 882

181 N.W.2d 882

288 Minn. 332, 45 A.L.R.3d 920

Albert E. MULDER, trustee for heirs of Helen C. Mulder, Deceased, Appellant, v. PARKE DAVIS & COMPANY, Respondent, Frank E. Mork,

Respondent.

No. 42004.

Supreme Court of Minnesota.

Oct. 9, 1970.

On Rehearing Dec. 18, 1970.

SYLLABUS BY THE COURT

1. Where a physician who prescribes a dangerous drug is fully aware of its potentially lethal effects, the failure of the manufacturer to warn him of its hazards is not a proximate cause of injury or death which results from use of the drug.

2. In reviewing the qualifications of a licensed physician to testify concerning the use of a dangerous drug, Held the foundation for his expert testimony was not as a matter of law established in a manner which rendered its exclusion reversible error.

3. In a malpractice suit against a prescribing physician, it was proper to show that under prevailing professional standards a manufacturer's instructions concerning the use of its product governed the profession in prescribing treatment. Evidence that such instructions were not followed by the physician and that failure to do so resulted in the patient's death was sufficient to make a prima facie case of liability.

Affirmed as to defendant Parke Davis. Reversed for a new trial as to defendant Mork.

LeVander, Zimpfer & Tierney and Frank E. Monson, Minneapolis, for appellant.

Faegre & Benson and G. Alan Cunning-ham, Minneapolis, for Parke Davis & Co.

Meagher, Geer, Markham & Anderson, and Mary Jeanne Coyne and O. C. Adamson, II, Minneapolis, for Frank E. Mork.

Dorsey, Marquart, Windhorst, West & Halladay, Minneapolis, for Minnesota State Medical Assn., amicus curiae.

Heard before KNUTSON, C.J., and NELSON, OTIS, ROGOSHESKE, and JAMES F. MURPHY, JJ.

OPINION

OTIS, Justice.

This is an action for death by wrongful act against the prescribing doctor and the manufacturer of a drug sold under the trade name of 'chloromycetin.' The trial court directed verdicts in favor of both defendants. Plaintiff appeals from an order denying his motion for a new trial. We affirm as to defendant Parke Davis and reverse as to defendant Frank E. Mork.

The facts are not in dispute. On June 24, 1965, decedent, Helen C. Mulder, consulted defendant Mork, a general practitioner, for an infection in her left ear. She was treated with penicillin but did not improve and returned 4 days later. Her condition was diagnosed as acute purulent otitis media. On that occasion, Dr. Mork took a culture which he tested with 15 antibiotics and found the most effective to be chloromycetin. He thereupon prescribed one 250-milligram capsule 4 times daily for 4 days. On July 2 Mrs. Mulder showed improvement and her prescription was renewed. However, she returned on September 22 and was treated by another doctor in defendant's clinic. It was found she had an exacerbation of otitis in her right ear. Again her prescription for chloromycetin was renewed. Three days later when she saw Dr. Mork, he took a hemoglobin test and prescribed the same treatment. About a week later, her left ear gave her trouble again and Dr. Mork repeated the prescription of chloromycetin. On January 10, 1966, the last time she was seen by Dr. Mork, he discovered she had been hemorrhaging in her arms, legs, and breast. She was sent to Mercy Hospital. There, the pathologist, Dr. Jose Sanchez, found that Mrs. Mulder was suffering from severe anemia and profound bone marrow depression. Shortly thereafter, she was removed to the Veterans Administration Hospital, where she died on January 29, 1966. Death resulted from gastrointestinal hemorrhage due to aplastic anemia or bone marrow depression.

The issues are (1) whether the condition which caused Mrs. Mulder's death resulted from ingesting chloromycetin; (2) whether Parke Davis was negligent in failing to give adequate warning of the drug's dangerous propensities; and (3) whether Dr. Mork was negligent in prescribing the drug to this patient.

1. With respect to the claim against Parke Davis, plaintiff alleges the company was negligent in putting a dangerous drug on the market without giving adequate warning as to its use. More particularly, it is asserted that defendant's so-called 'detail men,' who called on doctors, failed to mention dosage, length of therapy, level of concentration of the drug in the blood, or side effects of the drug. Although 'stuffers' which accompanied chloromycetin and the so-called physicians' desk reference gave adequate warning, plaintiff claims they did not come to the doctor's attention. The warning which Parke Davis gave is as follows:

'WARNING

'Serious and even fatal blood dyscrasias (aplastic anemia, hypoplastic anemia, thrombocytopenia, granulocytopenia) are known to occur after the administration of chloramphenicol. Blood dyscrasias have occurred after both short-term and prolonged therapy with this drug. Bearing in mind the possibility that such reactions may occur, chloramphenicol should be used only for serious infections caused by organisms which are susceptible to its antibacterial effects. Chloramphenicol should not be used when other less potentially dangerous agents will be effective, or in the treatment of trivial infections such as colds, influenza, or viral infections of the throat, or as a prophylactic agent.

'Precautions: It is essential that adequate blood studies be made during treatment which the drug. While blood studies may detect early peripheral blood changes such as leukopenia or granulocytopenia, before they become irreversible, such studies cannot be relied on to detect bone marrow depression prior to development of aplastic anemia.'

Dr. Mork testified on cross-examination that he was familiar with the information contained in the Parke Davis warning at the time he prescribed chloromycetin for Mrs. Mulder. Although he was aware of the dosage recommended, in this case he chose not to be governed by it. At the conclusion of the plaintiff's case, in response to the motion for a directed verdict, the court said, 'There is no claim that it (chloromycetin) shouldn't be on the market.' Plaintiff's counsel responded, 'No. Just the matter of the warning. We rely on the warning, Judge. We feel that there is a fact issue on the question of whether or not the doctor did know.' ¹ The court then pointed out that the doctor had testified he was aware of the side effects and possible complications in the use of chloromycetin, one of which was the dyscrasia experienced by Mrs. Mulder. Counsel did not dispute the court's understanding of the evidence. Thereupon the court directed a verdict in favor of Parke Davis.

We agree that where the only issue is failure to communicate a warning, the manufacturer is not liable if the doctor was fully aware of the facts which were the subject of the warning. Westerberg v. School Dist. No. 792, 276 Minn. 1, 8, 148 N.W.2d 312, 316; Magee v. Wyeth Laboratories, Inc., 214 Cal.App.2d 340, 351, 29 Cal.Rptr. 322, 328. As the court said in Magee:

'* * * Failure (of the doctor) to follow an unchallenged method of use prescribed by the manufacturer constitutes a break in causation which exonerates the manufacturer from any liability.'

Accordingly, we hold that it was proper for the trial court to direct the verdict in favor of Parke Davis.

2. With respect to the directed verdict in favor of Dr. Mork, we are confronted with the typical difficulties experienced in malpractice actions. All too frequently, and perhaps understandably, practicing physicians are reluctant to testify against one another. Unfortunately, the medical profession has been slow to fashion machinery for making impartial and objective assessments of the performance of their fellow practitioners. Consequently, in actions of this kind claimants are required to rely on licensed physicians who are not in the mainstream of the practice. This is such a case. None of the three witnesses for plaintiff was in active practice. Dr. Jose Sanchez was a 1955 graduate of the University of San Marcos Medical School, Lima, Peru. His practice was confined principally to pathology, more particularly as a member of the staff of various hospitals. He was the pathologist at Mercy Hospital when Mrs. Mulder was given a blood test in January 1966. Dr John Wild was educated in England and has been licensed to practice in Minnesota since 1952. He did not maintain an office and saw only occasional private patients. His principal experience was in clinical research to develop electronic diagnostic devices. Dr. Abraham Falk has...