Oksenholt v. Lederle Laboratories

• Decision Date: 07 May 1981
• Docket Number: No. A7808-13974,A7808-13974
• Citation: 51 Or.App. 419,625 P.2d 1357
• Parties: Erling OKSENHOLT, Appellant, v. LEDERLE LABORATORIES, a Division of American Cyanamid Corporation, a New York corporation, Respondent. ; CA 16160.
• Court: Oregon Court of Appeals

Page 1357

625 P.2d 1357

51 Or.App. 419

Erling OKSENHOLT, Appellant, v. LEDERLE LABORATORIES, a Division of American Cyanamid Corporation, a New York corporation, Respondent.

No. A7808-13974; CA 16160.

Court of Appeals of Oregon.

Argued and Submitted Aug. 27, 1980.

Decided March 30, 1981.

Reconsideration Denied May 7, 1981.

Richard P. Noble, Portland, argued the cause and filed briefs for appellant.

E. Richard Bodyfelt, Portland, argued the cause for respondent. With him on brief were Peter R. Chamberlain and Bodyfelt, Mount & Stroup, Portland.

Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.

GILLETTE, Presiding Judge.

In this action by the plaintiff physician against the defendant manufacturer of a prescription drug, the trial court sustained defendant's motion to strike plaintiff's complaint, without leave to plead further, on the express ground that the damages which plaintiff sought to recover were not cognizable under Oregon law under the causes of action pleaded. Plaintiff appeals from the subsequent judgment for the defendant. We reverse.

We take the facts from plaintiff's complaint. Defendant manufactures the drug Myambutol, which is used in the treatment of pulmonary tuberculosis. Literature published by defendant concerning the drug indicates that the drug will not cause a permanent loss of vision. Plaintiff relied on these representations. Beginning in August, 1973, plaintiff treated a patient, Mabel Benton, for whom he prescribed Myambutol. In December, 1973, Benton began to experience problems with her vision and, shortly thereafter, suffered a permanent loss of vision due to the drug.

On February 20, 1975, Benton filed suit against the plaintiff and others alleging that the plaintiff was negligent in his treatment of her. Plaintiff subsequently settled Mrs. Benton's claim against him for the sum of $100,000. He now brings this action against the defendant, alleging that the defendant failed to warn him of the risks associated with Myambutol.

Plaintiff frames his complaint in counts for negligence and fraudulent misrepresentation. He seeks general damages in the amount of the settlement, an additional $50,000 for damage to his professional reputation and the consequent impairment of his earning capacity, an unspecified amount of special damages due to lost income, and punitive damages in the sum of $5,000,000.

Defendant claims that the plaintiff's complaint fails to state a cause of action because it fails to allege any special injury. The only damages alleged by plaintiff, defendant argues, are those which would arise as the natural consequence of being subjected to a malpractice claim. It is defendant's contention, with which the trial court apparently agreed, that such damages are not recoverable under Oregon Law. It relies particularly on the law of malicious prosecution or wrongful initiation of a civil suit. See O'Toole v. Franklin, 279 Or. 513, 569 P.2d 561 (1977). Alternatively, defendant argues that the plaintiff is either attempting to create a new tort or to bring an action for indemnity or contribution.

INDEMNITY/CONTRIBUTION

Turning to this last matter first, we disagree with defendant's analysis. As noted, plaintiff is attempting to state a cause of action in negligence and in fraud. He does not claim a right to indemnity or seek contribution. Whether plaintiff can recover the kind of damages he seeks must be determined by reference to the specific torts which he does allege.

NEGLIGENCE

We next consider plaintiff's negligence claim. In this court plaintiff alleges that, pursuant to statutory authority, defendant, as a manufacturer of prescription drugs, has a duty to advise plaintiff, as a physician, of any relevant hazards, side effects, and precautions to be taken in connection with the administration of those drugs. He claims that defendant breached its duty by failing to fully inform the plaintiff and/or misinforming him about Myambutol, the drug in question, in one or more of the following particulars:

"1) In failing to advise plaintiff that the use of Myambutol could cause a condition known as optic atrophy, and hence carried the risk of permanent loss of vision;

"2) In advising the plaintiff that any loss of vision was reversible upon withdrawal of the medication, when the defendant knew, or in the exercise of reasonable care should have known, that a loss of vision could be permanent;

"3) In advising plaintiff that 'in controlled studies, the frequency and magnitude of decreases in visual accuity (sic) among patients being treated with Ethambutol Hydrochloride were not higher than patients on regimens not containing Ethambutol Hydrochloride,' when the defendant knew or in the exercise of reasonable care should have known that the referenced control studies were not comparable to the dose or duration of therapy recommended by the defendants;

"4) In advising plaintiff to look for a cause other than Myambutol to explain the patient's loss of vision and to discontinue Myambutol only if no other cause of visual loss could be found."

Plaintiff alleges that "in reliance on defendants published information, plaintiff did not cease the Myambutol immediately upon the development of visual symptoms" and, as a result, his patient suffered permanent loss of vision. Plaintiff claims that:

"As a proximate result of defendant's breach of its duty to plaintiff, and due solely to that breach, plaintiff was exposed to a claim for damages for Mabel Benton's loss of vision incurred the loss of $100,000 in settlement of Mabel Benton's disputed claim, his professional competency was questioned, and he suffered damage to his professional reputation in the community in which he practices, and consequent impairment of earning capacity, all to his general damage in the amount of $150,000, and plaintiff has lost income to the date of the trial in the amount of $____________ special damages."

1. Duty

In order to state a cause of action in negligence, plaintiff must allege that the defendant owed him a duty, that the defendant breached this duty, and that the breach was the cause, in fact, of some legally cognizable damage to plaintiff. Brennen v. City of Eugene, 285 Or. 401, 405, 591 P.2d 719 (1978). Whether a duty exists in any given case is a question of law. Yanzick v. Tawney, 44 Or.App. 59, 62, 605 P.2d 297 (1980), rev. den. 288 Or. 667 (1980).

In McEwen v. Ortho Pharmaceutical, 270 Or. 375, 385, 528 P.2d 522 (1974), the plaintiff, a patient, brought an action against the drug company for its failure to make timely and adequate warnings about the dangers of oral contraceptives. The court stated that

"(i)t is well settled * * * that the manufacturer of ethical drugs bears the additional duty (beyond that of guarding against defects in manufacture and insuring the efficacy of the drugs) of making timely and adequate warnings to the medical profession of any dangerous side effects produced by its drugs of which it knows, or has reason to know." ¹

The court went on to hold that

"(a)lthough the duty of the ethical drug manufacturer is to warn the doctor, rather than the patient, the manufacturer is directly liable to the patent for a breach of such duty. * * * " Id., at 386-387, 528 P.2d 522.

Defendant in the present case acknowledges its duty to warn the plaintiff, but contends that its duty is solely for the protection of the patient and, therefore, breach of the duty gives rise to a cause of action in the patient alone. The question we must answer is whether a drug manufacturer's duty to inform physicians about the hazards of prescription drugs for the protection of the physicians' patients also protects the physician from the type of harm alleged here.

"Duty" is, for the most part, a question of policy. As the court in Brennen noted, whether a duty exists "is simply an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." Brennen v. City of Eugene, supra, 285 Or. at 406, 591 P.2d 719. See also Mezyk v. National Repossessions, Inc., 241 Or. 333, 336, 405 P.2d 840 (1965); Prosser, Law of Torts, 325-326 (4th ed 1971). The scope of the duty owed is governed, inter alia, by the concept of "foreseeability." ² A defendant is not liable if the injury the plaintiff suffers is not the reasonably foreseeable consequence of defendant's acts. Brennen v. City of Eugene, supra, 285 Or. at 406, 591 P.2d 719; McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977).

A drug manufacturer's duty, as described in McEwen, is a duty to adequately inform doctors of the harm associated with prescription drugs. Compliance with this duty

" * * * enables the prescribing physician to balance the risk of possible harm against the benefits to be gained by the patient's use of that drug. Moreover, as observed by the court in Sterling Drug, Inc. v. Cornish, (370 F.2d 82 (8th Cir. 1966)) at 85:

' * * * (T)he purchaser's doctor is a learned intermediary between the purchaser and the manufacturer. If the doctor is properly warned of the possibility of a side effect in some patients, and is advised of the symptoms normally accompanying the side effect, there is an excellent chance that injury to the patient can be avoided. This is particularly true if the injury takes place slowly * * *.' "

McEwen v. Ortho Pharmaceutical, supra, 270 Or. at 387, 528 P.2d 522.

It is certainly foreseeable that, because a doctor is not adequately and completely informed about the hazards of a particular drug, he will prescribe an inappropriate or harmful drug for a patient or will continue to prescribe it in the face of harm which he believes will be only temporary. We think it equally foreseeable in the present day that, as a result of the patient's injury, the treating or prescribing doctor may be exposed to a claim of liability and suffer damage to his reputation, earning capacity and income with or without a formal claim...