Thomsen v. Rexall Drug & Chemical Co.
| Decision Date | 19 July 1965 |
| Citation | 235 Cal.App.2d 775,45 Cal.Rptr. 642 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Margaret J. THOMSEN, Plaintiff and Respondent, v. REXALL DRUG AND CHEMICAL COMPANY, a corporation, and J. Mock, Defendants and Appellants. Civ. 22286. |
Mullally & McCorkindale, Oakland, for appellant.
Bernard Allard, Oakland, for respondent.
Defendants, Rexall Drug and Chemical Company, and J. Mock, appeal from judgment after jury trial in favor of plaintiff in the sum of $75,000, 1 the orders denying motion for nonsuit, motion for judgment notwithstanding the verdict, and motion for new trial. 2
Solely, the sufficiency of the evidence.
The complaint charged negligence and breach of warranty in the filling of a certain prescription by defendants. A jury brought in a verdict in favor of plaintiff for $75,000 as damages for plaintiff's injuries resulting from her taking an erroneous prescription. Judgment was entered accordingly.
On this appeal, defendants do not attack the implied findings of negligence and breach of warranty but contend that there is insufficient evidence to show that plaintiff's condition was proximately caused by her ingestion of the erroneously refilled prescription rather than by her pre-existing illnesses or the effects of cortisone.
In the fall of 1960, plaintiff was 41 years old, married and had three children. About 15 years earlier, she began to suffer from rheumatoid arthritis, chiefly in the joints of her fingers, wrists and knees. She was placed on a steroid treatment and given cortisone drugs to alleviate the symptoms of the disease. Despite numerous flareups and remissions in her arthritic condition, she was able to take care of her family and to continue working as a waitress, earning about $90 a week. In 1956, she came under the care of Dr. Norman who prescribed many varieties of cortisone but usually returned to a type known as ataraxoid. Before seeing Dr. Norman, plaintiff had at times taken as many as seven cortisone pills a day in order to relieve her arthritic pains. Dr. Norman, however, reduced her dosage to three pills a day which was sufficient to enable her to take care of her family and to continue in her employment.
In the fall of 1960, plaintiff developed difficulty in disposing of the fluids in her body, a common symptom in patients on steroid therapy, i. e., taking cortisone type drugs. To correct this condition, Dr. Norman on September 19, 1960, prescribed a diuretic drug, with a brand name of 'hydrodiuril.' On September 20, plaintiff had the original hydrodiuril prescription filled at defendant's Drug King store on East 18th Street in Oakland across the street from her place of employment. She received a bottle containing a number of small pink pills.
On November 11, 1960, she returned for a refill of the hydrodiuril and was waited on by Mock, admittedly a registered pharmacist in Rexall's employ. Plaintiff noticed that Mock gave her some large yellow or white pills completely different from the small pink ones she had received before. After being assured by Mock that the white or yellow pills were her hydrodiuril prescription, plaintiff proceeded to take two pills a day in accordance with her doctor's orders, together with her three daily pills of ataraxoid. In the latter part of November and early in December, plaintiff experienced symptoms completely different from anything she had ever felt before--an unusual muscular tiredness and weakness and a sensation of numbness in her legs.
On December 17, 1960, plaintiff returned to the defendant's drug store for another refill of the hydrodiuril drug and the prescription was checked by another pharmacist named Farrin who informed plaintiff that the yellow or white pills were not her prescription and not to take any more of them. She returned the bottle containing some of the pills and no one ever saw them again. Farrin removed the large white or yellow pills from the bottle, changed the number on the label, and refilled it with the small pink pills that were like the original hydrodiuril pills.
In the latter part of December, plaintiff's condition became worse. The tiredness, weakness and numbness continued until she was unable to work and became bedridden. On January 6, 1961, plaintiff went to Dr. Norman's office and told the nurse she was feeling weak and thought she had the flu. Plaintiff's condition was preliminarily diagnosed as cortisone toxicity and she was immediately sent to St. Mary's Hospital in San Francisco.
She remained there for one month until her transfer to the University of California Hospital. By this time, her muscular weakness, etc. had increased so that she could no longer move her arms or legs. After her release from the University of California Hospital, she was still crippled and confined to a wheelchair. Continuing physical therapy provided a slight improvement in her condition, but she is permanently confined to a wheelchair, unable to care for herself or her family.
While plaintiff was in St. Mary's Hospital, extensive tests, etc. were carried on to determine the cause of her condition. Finally, a diagnosis of three separate but simultaneously existing diseases was made, two of them obvious and existing long before her admission to the hospital: (1) her rheumatoid arthritis; (2) a condition called Cushing's Syndrome, which is a recognized reaction to the cortisone drugs which she had been taking for many years (as indicated above, plaintiff contracted arthritis about 1945; she already exhibited some of the symptoms of Cushing's Syndrome when she first saw Dr. Norman in 1956); and (3) vasculitis, 3 the disease which is the crux of this controversy.
Vasculitis, briefly, is an inflammation of the small blood vessels which causes them to swell so that the blood vessels are blocked and the area they supply is, therefore, deprived of circulation. The symptoms of vasculitis are profound changes in the nerves supplied by the inflamed blood vessels, especially those going to the extremities, and weakness and loss of sensation in those areas supplied by the nerves supplied by the inflamed blood vessels, as well as by areas of skin destruction and gangrene. The disease is a rare one and there are several distinct types. The exact cause of vasculitis is unknown but is thought to be related to an allergic reaction of some kind. Some types of vasculitis develop as a complication of arthritis; others can be caused by certain drugs, including sulfa drugs as well as streptomycin, chloromycetin and penicillin, and there has been a statistically high frequency of some types in persons on steroid therapy.
At the University of California Hospital, where plaintiff remained for a month after transfer from St. Mary's Hospital, the previous diagosis of three simultaneous conditions superimposed on each other was confirmed. Further courses of diagnosis and treatment were undertaken. A biopsy indicated acute inflammation of the blood vessels (vasculitis) and an inflammation of the muscles (myositis); there were also indications of central nervous system changes with some reflex disturbances.
The defendants' medical experts agreed with the above mentioned diagnosis of plaintiff's condition as well as the nature and causes of vasculitis. The controversy centers on the varying opinions of the expert medical witnesses as to the particular type of vasculitis suffered by plaintiff and whether it could have been caused by the unknown drug that she took for a number of weeks after her prescription had been erroneously refilled.
Plaintiff's expert, Dr. Tufft, testified that her vasculitis was the main problem despite the two other simultaneous conditions. He reached this conclusion because it was obvious from plaintiff's prior history that her arthritis had been controlled since she had been able to function for so many years. He did not think that plaintiff was suffering from the malignant phase of arthritis or the type of vasculitis associated therewith because the malignant form of arthritis usually resulted in death and the very fact that plaintiff was alive excluded diagnosis of the malignant phase of arthritis.
He further testified that vasculitis had an incubation period so that it would take a period of several weeks after the unknown drug was taken before the symptoms would begin to manifest themselves. He testified that it was in the nature of this kind of disease to circulate in the blood stream for a period of three to four weeks and that the inflammatory reaction would result and reach its peak within that time and then subside of the causative substance was eliminated.
Dr. Tufft further testified that he had eliminated plaintiff's Cushing's Syndrome (or cortisone poisoning) as a factor in causing the vasculitis, for several reasons. First, he thought plaintiff was suffering from a self-limiting type of vasculitis, that is, one that would burn itself out in a period of six-eight weeks. Second, while there was some opinion expressed by defendants' experts which implicated vasculitis and cortisone, the handicap of this thing was that vasculitis was not peculiar to arthritis, as vasculitis had existed long before cortisone and had been seen experimentally in patients who had never used cortisone. Furthermore, cortisone was also used to suppress vasculitis where it was known that the vasculitis was self-limiting. This use of cortisone itself in the treatment of some types of vasculitis could cause a problem because it often 'masked' the development of the disease.
Dr. Tufft did not agree with the opinion of those doctors who thought that cortisone necessarily contributed to the development of vasculitis. He knew that several other types of drugs, including penicillin and sulfa drugs (both of which commonly come in large white pill form) had also been implicated as causes of vasculitis.
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